THE U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
 

PUBLIC HEALTH SERVICE
 

CENTERS FOR DISEASE CONTROL AND PREVENTION
 

NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH
 

convenes the 

ADVISORY BOARD ON
 

RADIATION AND WORKER HEALTH
 

VOLUME I 

The verbatim transcript of the Meeting of the 

Advisory Board on Radiation and Worker Health held 

at the Hyatt Regency Denver, Denver, Colorado, on 

Monday, July 1, 2002. 

NANCY LEE & ASSOCIATES 

Certified Verbatim Reporters
 

P. O. Box 451196
 

Atlanta, Georgia 31145-9196
 

(404) 315-8305
 
2 

C O N T E N T S 

VOLUME I
 

July 1, 2002
 

PARTICIPANTS (by group, in alphabetical order) ..... 3 
 

REGISTRATION AND WELCOME 

Dr. Ziemer ...................... 6 
 

REVIEW AND APPROVAL OF DRAFT MINUTES
 

Dr. Ziemer ...................... 8 
 

NIOSH PROGRAM STATUS REPORT
 

Mr. Sundin ...................... 12 
 

INTRODUCTIONS
 

Mr. Elliott ..................... 33 
 

Audience ....................... 34 
 

DOL PROGRAM STATUS REPORT
 

Mr. Mansanares .................... 35 
 

DOSE RECONSTRUCTION WORKGROUP REPORT
 

Mr. Griffon ..................... 45 
 

SPECIAL EXPOSURE COHORT PETITIONING NPRM
 

Mr. Katz ....................... 81 
 

Board Discussion .................. 101 
 

PUBLIC COMMENT PERIOD
 

Mr. Tabor ................... 194, 238

Dr. Bistline . . . . . . . . . . . . . . . . . . . . 203 
 

Mr. Schofield ................... 215 
 

Mr. Miller ..................... 219 
 

ADJOURN ....................... 240 
 

CERTIFICATE OF REPORTER ................ 241 
 
3 

P A R T I C I P A N T S 

(By Group, in Alphabetical Order) 

ADVISORY BOARD MEMBERS 

CHAIR 

PAUL L. ZIEMER, Ph.D.

Professor Emeritus 

School of Health Sciences 

Purdue University

Lafayette, Indiana 

EXECUTIVE SECRETARY 

LARRY J. ELLIOTT 

Director, Office of Compensation Analysis and Support

National Institute for Occupational Safety and Health

Centers for Disease Control & Prevention 

Cincinnati, Ohio 

MEMBERSHIP 

HENRY A. ANDERSON, M.D.

Chief Medical Officer 

Occupational and Environmental Health

Wisconsin Division of Public Health 

Madison, Wisconsin 

ANTONIO ANDRADE, Ph.D.

Group Leader, Radiation Protection Services Group

Los Alamos National Laboratory

Los Alamos, New Mexico 

ROY LYNCH DeHART, M.D., M.P.H.

Director 

The Vanderbilt Center for Occupational and Environmental

Medicine 

Professor of Medicine 

Nashville, Tennessee 

RICHARD LEE ESPINOSA 

Sheet Metal Workers Union Local #49 

Johnson Controls 

Los Alamos National Laboratory 
4 

Espanola, New Mexico 

SALLY L. GADOLA, M.S., R.N., COHN-S

Occupational Health Nurse Specialist

Oak Ridge Associated Universities

Occupational Health

Oak Ridge, Tennessee 

MARK A. GRIFFON 

President 

Creative Pollution Solutions, Inc.

Salem, New Hampshire 

JAMES MALCOM MELIUS, M.D., Ph.D.

Director 

New York State Laborers’ Health and Safety Trust Fund

Albany, New York 

WANDA I. MUNN 

Senior Nuclear Engineer (Retired)

Richland, Washington 

ROBERT W. PRESLEY 

Special Projects Engineer

BWXT Y-12 National Security Complex

Clinton, Tennessee 

GENEVIEVE S. ROESSLER, Ph.D.

Professor Emeritus 

University of Florida

Elysian, Minnesota 

INVITED SPEAKERS 

TED KATZ, M.P.A.

Policy Analyst

National Institute of Occupational Safety and Health

Atlanta, Georgia 

ROBERT MANSANARES 

District Director 

Energy Compensation District Office

Department of Labor

Denver, Colorado 
5 

DAVID SUNDIN 

Deputy Director

Office of Compensation Analysis and Support

National Institute of Occupational Safety and Health

Cincinnati, Ohio 

DHHS STAFF/VENDORS 

MARY ARMSTRONG, Office of General Counsel

RUSS HENSHAW, NIOSH

CORRINE HOMER, NIOSH

ELIZABETH HOMOKI-TITUS, Office of General Counsel

MARIE MURRAY, Writer/Editor

JIM NETON, NIOSH

KIM NEWSOM, Certified Court Reporter 

AUDIENCE PARTICIPANTS 

ROBERT W. BISTLINE, Ph.D.

SYLVIA KIEDING 

JEFFREY L. KOTSCH 

SONYA LEVINE 

RAY MALITO 

RICHARD MILLER 

LOUISE PRESLEY 

PHILLIP SCHOFIELD 

ROBERT G. TABOR 

JOSEPH F. TINNEY 
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P R O C E E D I N G S 

8:30 a.m. 

DR. ZIEMER: Good morning, everyone. I'd 

like to call the meeting to order. 

This is the fifth meeting of the Advisory 

Board on Radiation and Worker Health. Three of 

our meetings were face-to-face in Washington, 

D.C. One was a conference call, and now we have 

our fifth meeting here in Denver. We're pleased 

to be here and to have some of the local folks 

here with us today, as well. 

I'm Paul Ziemer, Chairman of the Board. All 

of the Board -- the record will show that all of 

the Board members are present. And if some of 

you who are visitors have not had a chance to 

meet the Board, we're not going to have 

introductions this morning of the Board, but you 

can introduce yourself during the break or at 

some other time. 

I would like to particularly indicate to 

members of the public, if you have not already 

registered your attendance with us there is a 

book in the back. Please do that. Also, if you 

wish to make a comment, a public comment later on 

in the meeting, please sign up so that we can 

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schedule that. There's a book back on the table 

for you to sign up for public comments. 

Also on the table there are copies of today's 

agenda, as well as other informational items, 

some items from past meetings, the minutes of our 

past meetings, the recommendations of this Board 

from previous meetings, and other related handout materials including some of the materials 

that will be used today. 

Since the last meeting there has been a 

working group that has been considering 

approaches that the Board could use in carrying 

out its responsibilities relative to the dose 

reconstruction activities, and we're going to 

hear from that subcommittee yet this morning, and 

have at least an initial look at what they are 

thinking and what they are going to recommend to 

this Board. 

We have a number of other presenters today 

and tomorrow, as you see on your agenda. And by 

the way, the agendas are available on the table, 

too, if you did not get one. So we have a busy 

schedule before us for the next two days. 

One of the important items is a proposed 

rule-making on special cohorts that we will be 

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considering today and tomorrow, if necessary. 

Particularly be thinking in terms of possible 

comments that the Board may wish to make on that 

rule-making. 

I've indicated that we do have a full 

complement of the Board members here. As a 

matter of information I might tell you that it's 

my understanding that the White House Office of 

Personnel is considering making additional -- at 

least one, maybe two, additional appointments to 

the Board. I'm not quite sure where they are in 

that process, but it's my understanding that that 

is in process, and we may by next meeting have 

one or two additional members in place. 

So we have a full schedule before us. We'll 

adjust the agenda if needed, based on how things 

go and how much time is actually needed for the 

different items on the agenda. In general we'll 

try to follow that agenda as closely as we're 

able to, but recognize that there is some 

flexibility, if necessary, to adjust the times of 

various activities. 

We're going to move directly to the minutes 

of our last meeting, and I'm going to move myself 

back to my seat for that purpose, so if you'll 

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bear with me just a moment. 

The draft minutes of the meeting of May 2nd 

and 3rd, 2002, are in your packet. I believe 

they were also on-line in advance so that even 

though the Board members didn't get their packets 

till last night, and I know many of you stayed up 

till long into the morning hours reading the 

materials, but you did have an opportunity to 

look at these earlier, about a week ago or so, 

on-line. I had the opportunity of going through 

these in detail myself prior to this version, and 

there were a few editorial changes. But now is 

the time to ask for any additions or corrections 

to the minutes. 

Wanda. 

MS. MUNN: I had no significant additions or 

changes, and I know it's word engineering, but on 

the very first page of the minutes --

DR. ZIEMER: Which page is it? 

MS. MUNN: The very first page. 

DR. ZIEMER: Very first page? 

MS. MUNN: Uh-huh, next to the last sentence. 

DR. ZIEMER: This is the executive summary or 

the minutes themselves? 

MS. MUNN: This is the --

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DR. ZIEMER: 1-5 or 1/5? 

MS. MUNN: This is 1/5. 

DR. ZIEMER: Okay. 

MS. MUNN: The next to the last sentence, 

every time I read that sentence I get to the word 

"hazard" and it stops me. There are -- it seems 

to me that "jeopardize" is a better word, 

possibly "compromise," but in my mind 

"jeopardize" is much more straightforward and 

easily understood on first reading. 

DR. ZIEMER: Any objection to substituting 

the word "jeopardize"? Probably grammatically 

that might be better anyway, even though someone 

might have said it this way. 

(No responses) 

DR. ZIEMER: Other corrections or additions? 

Yes, Dr. Roessler. 

DR. ROESSLER: I'd just like to comment that 

somebody put in a lot of work on these minutes. 

They're very easy to read. They're very concise. 

They're just really good, good minutes. I think 

it's due to our people here, and perhaps, Paul, 

your going over them. 

DR. ZIEMER: I would say it's mostly the 

staff effort. We thank them for that. 

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MS. MUNN: They need a gold star. 

DR. ZIEMER: So you're not suggesting any 

changes to anything, thank you. 

Again, corrections, additions, modifications? 

(No responses) 

DR. ZIEMER: Motion to approve with the minor 

correction given? 

MR. PRESLEY: So moved. 

DR. ZIEMER: Second? 

DR. DEHART: Second. 

DR. ZIEMER: All those who approve the 

minutes, say aye. 

(Affirmative responses) 

DR. ZIEMER: Any opposed? 

(No responses) 

DR. ZIEMER: Motion carries. The minutes 

stand approved. 

We are already ahead of schedule. You were 

supposed to take longer on these minutes than you 

did. 

If the staff is ready, we can move on to the 

NIOSH program status report. And Larry, would 

you introduce the staff members who participate 

here? 

MR. ELLIOTT: Thank you. 

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We will start off this morning with your 

NIOSH program progress report or program report, 

which we've done in the past. I'll ask my 

Deputy, David Sundin, to present that to you 

today. I've had a number of things occupy my 

mind and my time since we last met, and he was 

gracious enough to take this role on. 

And then he'll be followed by Bob Mansanares 

from the Department of Labor's District Office 

here in Denver to give you a report on DOL's 

piece of the program and the status in that 

regard. This was an action item that I took from 

our last minute -- or last meeting, that somebody 

expressed an interest to have that kind of a 

presentation as well. 

So, Dave Sundin. 

MR. SUNDIN: Good morning. I'm pleased to be 

with you here in Denver for your fifth meeting, 

and I've planned to give you a brief overview of 

program status. I'll be following the model that 

has been used in previous Board meetings. 

June 30th marked the end of our third quarter 

of our fiscal year, so for many of these 

indicators I'll be able to give you statistics 

which show trends over three quarters, three full 

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quarters, and these are the three quarters that 

we've basically been receiving claims for dose 

reconstruction. 

It's our understanding that the Department of 

Labor has received approximately 15,000 non-SEC 

cancer claims for which they're verifying 

employment and diagnosis, and they have 

transferred as of last week over 5,000 claims to 

NIOSH for dose reconstruction. You may recall 

that we began receiving claims from the 

Department of Labor on October 11th, 2001, and as 

you can see the number of claims referred to 

NIOSH has increased each quarter of this fiscal 

year. 

You may also recall that each of DOL's four 

district offices sends us one batch of claims 

each week. We then send a letter to each 

claimant to let them know we've received their 

claim for dose reconstruction, and in that letter 

we also inform them of the steps their claim will 

go through and how they can contact us to monitor 

progress. We log each case into our computerized 

claims tracking system. We electronically scan 

all documents in each case file and also create 

and maintain a paper file system, which is 

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growing by leaps and bounds, as you might 

imagine. 

We then identify, using the DOL referral 

summary sheet which accompanies each case file, 

the covered sites where the energy employee 

worked and the various jobs he or she held. We 

identify any NIOSH-held information that's 

pertinent to the claim, and this all permits us 

to focus our requests for radiation exposure 

information on specific locations and time 

periods, and to direct our requests to the 

appropriate DOE points of contact. 

We're working very closely with DOE and the 

designated points of contact at the sites to 

ensure that we get the kind of exposure 

information needed to conduct the dose 

reconstructions in a timely manner. We continue 

to explore ways to expedite the fulfillment of 

our information requests, build site-specific 

profiles, establish efficient ways to access and 

evaluate sensitive information, and verify that 

no further information exists. 

We're continuing our discussions with DOE on 

the terms of the Memorandum of Understanding 

between HHS and DOE on all of these points. The 

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purpose of this MOU, of course, is to set forth 

the guidelines for collaboration between HHS and 

DOE in carrying out our respective 

responsibilities under EEOICPA and the Executive 

Order. And I believe we're very close to having 

a document which both Departments can sign on to. 

Within the last quarter we've seen an 

improved response to our requests for information 

from most of the DOE sites, and we expect 

continued improvement as each site becomes more 

familiar with our information needs and develops 

the capacity to respond. 

We evaluate the information provided by DOE 

for accuracy and completeness in light of what we 

need for dose reconstruction. And where we 

determine that the information is incomplete or 

inadequate we follow up with DOE with additional 

information requests, and to date there have been 

51 such follow-up requests for additional 

information. 

In some cases we've asked DOE to continue 

searching for information where none was provided 

in response to our initial request. Atomic 

weapons employer facilities are an example of 

this situation, and we have worked with DOE to 

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identify repositories of data which we can 

capture for our use in reconstructing doses for 

AWE claims in particular. 

In other cases we're seeking site-specific 

information on historical dosimetry and bioassay 

practices and methods. And of course, this 

general information is valuable in that it could 

be used for the benefit of all claims relevant to 

that site and time period. 

Once we've assembled and reviewed all 

relevant information from NIOSH records and 

received and examined the information from DOE, 

we schedule the interview with the claimant. As 

of today we've conducted 105 claimant interviews 

with employees and survivors. We currently 

actually have 127 dose reconstructions underway. 

This means that we've received, assembled, 

evaluated, and reviewed readily available 

information pertinent to the claim, and for 13 

claims we have completed the draft dose 

reconstruction report which is called for under 

our Rule 42 CFR 82. We've actually mailed out 

four draft dose reconstruction reports to 

claimants, including one claimant from Rocky 

Flats here. 

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This is followed up by a phone call from the 

dose reconstructionist who did the dose 

reconstruction. The purpose is to explain the 

report process and the findings of the dose 

reconstruction. We also seek the claimant's 

approval on an OCAS-1 form so that we can close 

the dose reconstruction process and move the 

claim on to the Department of Labor for 

determination of probability of causation. 

At this point a comprehensive administrative 

record is also created for transmittal to DOL. 

This includes all documents in the case file, all 

information used in the dose reconstruction, all 

correspondence and phone calls with the claimant, 

and the input file for the NIOSH-IREP. One 

completed dose reconstruction and administrative 

record has been transmitted to DOL to date, and 

several others will be sent soon. Obviously we 

all want this number to begin to increase 

rapidly. 

From the outset, a key element of our plan to 

conduct a large volume of dose reconstructions in 

a careful but timely manner, and return these 

cases to DOL in a form appropriate for final 

adjudication, has involved awarding a substantial 

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contract for support across the entire range of 

activities required to complete work on a claim. 

The success of this contract partnership is 

essential to the success of all of our efforts on 

behalf of claimants, so we're proceeding 

carefully and thoughtfully to ensure that we 

select a contractor that has the resources, 

skills, and experience to handle a large number 

of claims in a timely and scientifically rigorous 

manner. We intend to establish and manage this 

contract such that OCAS, our claimants, and the 

public can be confident in the fair and timely 

treatment of all claims. 

We're nearing the end of this competitive 

procurement process, and I believe I speak for 

everyone at OCAS when I say we're very eager for 

the arrival of this much-needed contract support. 

Actually, just as an update, we expect the best 

of the final offers from the technically 

acceptable proposers on the 18th of July. 

As you probably know, we make it very easy 

for claimants to contact us, and they do so. The 

number of phone calls received at OCAS has 

increased substantially each quarter as we 

receive more and more claims. We are currently 

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receiving an average of 40 phone calls per day, 

which really keeps us connected with the claimant 

concerns and issues, and motivates us to continue 

our efforts on their behalf. 

Our web site, as I hope you'll agree, is an 

unusually rich source of information on this 

program, and it also serves as a channel through 

which claimants can contact us. We've received 

nearly 300 claim-related e-mails, and responded 

to every one of them within 24 hours. 

So with that, I thank you for your attention, 

and I'll try to answer any questions you might 

have. 

DR. DEHART: Roy DeHart. The question I have 

regards the telephone interviews. Those are 

rather extensive, and you’ve had a rich period 

here this third quarter to conduct those. Is 

there anyone here that can talk to the response 

of the individuals you've been calling on those 

interviews, survivors as well as the individuals? 

MR. SUNDIN: Well, I've not actually 

conducted an interview myself. You're right, it 

is an extensive interview. I think we are 

getting reasonably good information from Energy 

employees, less detailed information, as you 

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might expect, from survivors. But of course, the 

questionnaire is designed to be less demanding 

for those survivors. 

Jim, I don't know if you wanted to add to 

that? 

DR. NETON: Yeah. This is Jim Neton. 

It's been a fairly encouraging process thus 

far. We've been getting good feedback. 

Claimants are very responsive. We do mail out in 

advance of the interview a template of the 

questionnaire that the people will be responding 

to, so it gives them a heads-up, a week or so to 

review and refresh their memory about some things 

that happened in the distant past. 

Dave's right, survivor knowledge is much less 

complete than the workers', but we do take names 

of coworkers at that point and will follow up, if 

necessary, with coworkers of that person to fill 

in the details. 

In many cases we don't really flesh out the 

record much greater, but there's been some really 

good surprises in there where people will bring 

forth some information that will make a 

difference in the dose reconstruction. So by and 

large, I think it's been a worthwhile process. 

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We have not taken as long as -- well, they've 

taken about what we thought it would take. The 

average interview is running about an hour, 

although I think our record right now is well 

over four hours, so it varies. But it's been a 

very encouraging process thus far. 

Larry just reminded me that we have run into 

some issues with classified interviews, and we've 

dealt with that in an appropriate manner. A 

number of these workers have in the past had 

security clearance, Q-cleared classifications. 

We make arrangements on those cases to conduct 

the interview in accordance with the rules and 

requirements surrounding that, and that is we 

actually will do the interview in a Department of 

Energy facility that is cleared for 

classification. A (inaudible) classification 

officer reviews the interview notes after the 

interview is complete, and we use that process. 

So we've done two in that manner thus far, 

and it's worked really well. We're trying to 

keep the number of classified interviews down. 

We feel by and large most of these people do not 

need to share classified information for us to 

complete an adequate dose reconstruction, but at 

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least in two instances thus far -- we have a 

third one coming up, I believe -- they believed 

there was sufficient classified information that 

was needed to be brought forth to complete the 

interview. 

DR. MELIUS: As I understand it, you're going 

to award -- you hope to award the contract for 

dose reconstruction later this month, and 

there'll be some time period getting the 

contractor then up and working. Have you got any 

projections as to how this will affect your 

ability to complete dose reconstructions, and 

what the time table will be to deal with the long 

backlog of dose reconstructions that will need to 

be done? 

MR. SUNDIN: Well, first of all, I'm not 

absolutely sure that, given the best and final by 

the 18th, that we'll have a contract award on the 

30th, because there's a negotiation process. But 

having said that, I think we're close to getting 

the award. We'll continue to do dose 

reconstructions using our in-house staff until 

the contractor comes on board, obviously. But 

you're well aware that that -- what our capacity 

is using in-house staff. 

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The scope of work for this contract calls for 

a very ambitious start-up period. And that's 

going to be one of our very high priorities, is 

that there's not a long learning curve, to the 

extent that we can continue to remind this 

contractor that this contract calls for certain 

deliverables within 30 days of start-up. We 

intend to get them pointed on the task and going 

just as soon as possible. So it'll be a quick 

start-up, and hopefully making a lot of good 

progress against a considerable backlog. 

DR. MELIUS: I guess my question is have you 

made any projections as to when you would catch 

up with the backlog? Say you have the contractor 

going September 1st -- whatever, some arbitrary 

date in the next few months -- then where does 

that put you in terms of dealing with the backlog 

of cases as well as, what, the 15,000 sitting 

over at DOL waiting to come over? I guess that's 

one question, and then I have a follow-up to 

that. 

DR. NETON: I think I can answer that. The 

contract is written so that the contractor will 

have sufficient surge capacity to handle backlog 

volume. We have a requirement in the contract 

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that they bid to performing 8,000 dose 

reconstructions in the first year of operation. 

So at this point, it looks like that was a pretty 

good guesstimate going in, that there may be 

around 8,000 claims to process in the first year, 

maybe even slightly less than that. And so as 

best I can tell you is that within the first year 

of the contract all this backlog should be 

completed. 

DR. ZIEMER: Follow-up question? 

DR. MELIUS: Then -- actually two separate 

questions. One is that -- if I make sure I 

understand this right -- is that then that's 

8,000 a year plus whatever you can do in-house, 

we're talking about a two-year time period, 

roughly, if all those 15,000 or so over at Labor 

come over to NIOSH? 

DR. NETON: Well, all the 15,000 haven't 

arrived at NIOSH yet. All I can say is -- well, 

it's 8,000 in the first year, although the 

contractor does have -- we do have -- we can 

request that they increase their capacity to 

handle whatever volume comes our way. Now 

whether they can handle 15,000 in a very short 

time period, I don't know. But it's certainly in 

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the scope of the contract to add dose 

reconstructions essentially as the volume 

increases. I really don't know what percent of 

those 15,000 that are out there are going to end 

up here. 

DR. MELIUS: Then my other related question 

is what do you see as being the sort of ratelimiting step in trying to deal with that large 

backlog, whatever the number may be? We don't 

know obviously what that is. Is it going to be 

completing the dose reconstructions, or is it 

going to be getting information, the dose 

information from DOE? Because there's got to be 

some limitation on the capacity for the 

individual sites to respond. 

DR. NETON: That's correct. Right now 

obtaining the information from DOE is a limiting 

step, but it really depends upon the case. We 

have a number of cases that we have sufficient 

information, they can go through very quickly. 

There are always going to be those difficult 

cases that are out there that are going to take 

much longer than we would like. But right now, 

obtaining adequate information on each claimant 

to complete the dose reconstructions is going to 

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be the limiting step. 

DR. ZIEMER: Sally. 

MS. GADOLA: My question has to do with 

basics. And I am sure that you've learned a lot 

while you've been doing the dose reconstruction, 

but I haven't seen it recorded anywhere. And I'd 

like if someone could address such basic 

questions as who actually recorded dosimeter 

readings, how were they kept, how were they 

transferred when employees transferred from plant 

to plant? If an employee thought that they were 

sick from radiation and they questioned this, 

were they able to obtain dose records? And if 

those records are kept the same in all the DOE 

plants, and have you noticed a big difference in 

the subcontractors and the various DOE plants? 

I know those are a lot of questions, but I 

feel like we need to somehow record the actual 

basis before we get into the more complicated 

reconstruction. 

MR. SUNDIN: If I understand, we don't have a 

large number of completed dose reconstructions, 

obviously. We’ve got several underway. But I 

think you're point's a good one, at some point, 

when we've done a few of these and gotten to the 

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end, to look back and see what we can take from 

that and learn, and apply it to those that still 

remain to be done. 

Is that sort of the sense of your --

MS. GADOLA: I want to know who is really 

responsible for recording them, and who was 

taking a look way back when to make sure that the 

employees were not receiving too much radiation. 

DR. NETON: Well, NIOSH is doing that. We 

are developing what we call the site profiles for 

each of the sites. We requested monitoring --

not only do we request the monitoring information 

for the individual, but we've made a separate 

request for general information going back from 

the beginning of the site to document the 

radiation monitoring programs, what type of 

samples were taken, what the capabilities of 

their external monitoring devices were, and those 

type things. 

We are assembling them and developing a 

database. All these things are electronically 

scanned, and then we derive secondary databases 

from them and profile these sites. We're working 

on that. I think we have about information on 

eight or ten sites right now. It's put on our 

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intranet. We don't have it out there for the 

public on our web site, although I suspect that 

that could happen if it was desired. 

The other answer to your question, I think, 

is much of this is documented when we perform a 

dose reconstruction. It's an individual -- much 

an individual basis type thing, depending on when 

the person worked, basically, as you would think. 

And each dose reconstruction we take and we 

discuss which records were available, and why we 

used or did not use those records, and what the 

adequacy of them were for performing the dose 

reconstruction. That would be hard to get your 

handle on because they're individuals, but 

possibly when the Board undertakes its review of 

our dose reconstructions that may come out from 

that process. 

MS. GADOLA: Thank you. 

DR. ZIEMER: Sally, I might add a comment to 

that. In the early days of the AEC, and actually 

to some extent now, the individual laboratories 

have, perhaps intentionally, been made to develop 

a “not invented here” syndrome, where each one 

does its own thing. And so you see very 

different dosimetry schemes, it's not one scheme 

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for the DOE or for the old AEC. Oak Ridge had 

its own film badge system, Hanford had its, 

Savannah River had its. There are similarities, 

of course, and there was exchange of information. 

But if you look through those old records -- I 

have -- and there are differences in each case. 

So you have to look at it certainly site by 

site. In many cases there are pretty good 

records as far as from a health physics point of 

view. But how far back you have to go before you 

would say they're pretty fuzzy, I think that'll 

come out as things develop. But even today you 

don't see that consistency from one lab to 

another, because the labs like to do their own 

thing. And to some extent they were encouraged 

in the past to do that. There was kind of a --

almost a competition encouraged between the labs, 

and certainly in the early days, and that has 

carried forth. 

Other questions or comments? 

Yes, Sally. 

MS. GADOLA: I appreciate all that you've 

done, and I appreciate from working some with 

NIOSH and with OSHA in the past and understanding 

their desire to give accurate, honest 

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information, and also realizing the difficulty --

I'm talking about my experience in working in 

other plants, not DOE plants, and also working 

with people that were very well-meaning that 

worked in safety, but also did not have adequate 

training. Therefore, I appreciate the magnitude 

of this task of trying to be accurate, trying to 

give good information, and also realizing that 

when employees in other plants have questioned 

levels -- like for chemicals -- that often those 

records were lost, those records had been 

altered, and from my own personal knowledge 

knowing that some of the people that were 

responsible had lapses of memory. 

And that's why I think it's important that as 

a Board that we just question it and document it, 

and appreciate the difficulty of really obtaining 

scientific, accurate, very basic information. 

And I appreciate all that you have been doing, 

and I think NIOSH understands the difficulty of 

that. Thank you. 

MR. GRIFFON: Mark Griffon. Just to follow 

up on this line of questioning, saying the 

limiting factor was getting information from DOE, 

I think last meeting we asked about a Memorandum 

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of Understanding between NIOSH and DOE. Do you 

have a status on that? Did I miss that maybe? 

MR. SUNDIN: I did speak to that. We have 

had a number of exchanges with our counterparts 

in DOE, have arrived at some shared understanding 

on certain issues, and identified others that we 

may want to table. But I believe we're close to 

having a document which both Departments can sign 

on to. The discussion process itself really has 

value, I think, in negotiating MOUs, which are of 

course not legally-enforceable documents. In 

that respect I think there's been a lot of good 

interchange and exchange of views between HHS and 

DOE. I can't give you an exact date when we 

might have a signed agreement. 

DR. ZIEMER: Jim. 

DR. MELIUS: Yeah, to follow up on that 

question, it would seem to me that in the MOU 

there would be at least two sort of deadlines or 

schedules that would be important. 

One is sort of for routine responses, where 

it's straightforward and getting records that are 

available, and it's just a question of sort of 

the time at the facility to find the records, get 

them in a form that they can be sent to NIOSH. 

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And you still want that to occur within a certain 

time period or it'll back up the entire process. 

The second one would be that if -- for harder 

to find records, or where there's questions 

whether records are available at all, or whether 

even monitoring was done on an individual. And 

that may take longer, but if you don't have some 

sort of a deadline or schedule to deal with that 

it would seem to me it would back up the whole 

process, and you have people that would be 

waiting for months or years to get even into the 

dose reconstruction phase. 

Is there consideration in the Memorandum of 

Understanding for dealing with both of those 

issues? 

MR. SUNDIN: There is, Jim. I share your 

basic observation. That has been a major point 

of discussion during our negotiations -- if 

that's the right word -- around this MOU. So I 

don't know exactly how we will come out on that, 

but we want to make it clear that both agencies 

share a commitment to timely satisfaction of 

information requests, with acknowledgement that 

there are certain requests which will require 

more time. So that is a central discussion point 

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in the MOU. 

Any other questions? 

DR. ZIEMER: Additional questions? 

(No responses) 

DR. ZIEMER: There appear to be no additional 

questions at this time. Dave, you'll be here --

will you be here throughout the meeting, or just 

today? 

MR. SUNDIN: Yes, I'll be here both days. 

DR. ZIEMER: Good. So if additional 

questions arise, then -- or other staff members 

could also address some of these things. 

Might I ask, just before our next speaker, 

Larry, would you just take a moment and introduce 

all of the other staff members who are with us 

today just for the record? Many of them we've 

met before, but I'd like to ask that they be 

introduced. 

MR. ELLIOTT: Surely. We have with us today 

-- from OCAS we have Jim Neton, who you’ve heard 

earlier this morning, is the health science 

administrator; and my staff, Russ Henshaw, who 

has been presented to the Board before, an 

epidemiologist on OCAS; Ted Katz, who's a policy 

analyst within NIOSH; Dave Sundin, you just met 

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and heard from; and Cori Homer, who's probably 

dealing with some issue administratively right 

now. And we have Mary Armstrong, who's Office of 

General Counsel assigned to NIOSH; Liz, Elizabeth 

Homoki-Titus, who I don't see in the room right 

now, another attorney assigned to us from the 

Office of General Counsel. I think that's all 

the staff members from NIOSH. 

DR. ZIEMER: Thank you. 

And then before we hear from the 

representative from Department of Labor, I would 

like to also take this opportunity to have 

members of the public or other guests introduce 

themselves. We generally do this sometime during 

the morning, not only for the record, but just so 

that we have an awareness of who is with us this 

morning. So I'm just going to take a minute now, 

and if you're not one of the staff members that’s 

been introduced but are an observer of member of 

the public, just if you would please introduce 

yourself and indicate who you represent, or 

whether it's yourself or a group. We can start 

in the back there. 

MS. KIEDING: I'm Sylvia Kieding, and I'm 

with Pace International Union. 

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MS. ARMSTRONG: I'm Mary Armstrong, OGC. 

MR. TINNEY: Joe Tinney with SAIC, and a 

former DOE employee and union contractor. Spent 

two and a half years with (inaudible). 

MR. TABOR: I'm Bob Tabor. I've been here 

before. I'm from Cincinnati, the Fernald site, 

Fernald Atomic Trades & Labor Council. 

MR. SCHOFIELD: I'm Phillip Schofield. I 

spent 21 years at LANL as a radiation worker. 

I'm here to represent Los Alamos POWs. I was put 

out on (inaudible) in '96. 

MR. MANSANARES: I'm Bob Mansanares. I’m 

with the Department of Labor. 

MR. MALITO: I'm Ray Malito, the manager of 

the Energy Resource Center here in Denver. 

DR. BISTLINE: Bob Bistline. I'm with the 

Rocky Flats Field Office in Department of Energy. 

I've been at Rocky Flats for 36 years, on a 

contractor site with DOE. 

MS. PRESLEY: Louise Presley, observer, wife 

of Board member Robert Presley. 

MR. KOTSCH: Good morning. My name is Jeff 

Kotsch. I'm a health physicist with the Energy 

Compensation Group, Department of Labor, back in 

Washington. 

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MS. LEVINE: I'm Sonya Levine from the 

Department of Labor, Office of the Solicitor, 

from Washington. 

DR. ZIEMER: Thank you very much. 

Let's proceed with the Department of Labor 

program status report, Robert. 

MR. MANSANARES: Good morning. My name is 

Bob Mansanares. I'm District Director for the 

Department of Labor's Energy Compensation 

District Office here in Denver. 

I want to thank you, Mr. Ziemer and Mr. 

Elliott, for having me, for asking me to come 

here and speak to you and give you a progress 

report for -- I do not say EEOICPA; I say Energy 

Compensation. The EEOICP is long enough in 

itself, and I feel that Energy Comp is 

understood. 

First of all, let me say that I'm here, and 

I'm very happy to note there are two DOL 

colleagues here. I was feeling somewhat 

overwhelmed this morning, and then I realized I'd 

seen those faces before, but I wasn't quite sure 

where. And it really is nice to know there are 

colleagues here. So if I misstate a legal point 

of view, just raise your hand and advise me, and 

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37 

I will retract and we will correct. 

And the other thing is, as I understand it 

this is the Advisory Board's first meeting in 

Denver, and of course, welcome to Denver. You're 

going to find Denver is a very inviting place. 

We have a tax structure that says to us, if we're 

smart Coloradians, welcome, visitors, and do 

spend your evenings profitably on behalf of 

Colorado by shopping and taking in the sights. 

I think that most of you know the program 

provides compensation for persons who have become 

ill as a result of working at DOE facilities and 

certain vendors and subcontractors. Again, 

uniformity in the development and the payment of 

benefits is the protocol that I'm sure the 

Congress had in mind when they started thinking 

about Energy Comp and the Department of Labor 

delivering benefits in terms of administration. 

These are the benefits that are payable: 

Covered medical costs; lump sum is $150,000 to 

the employee or the eligible survivor; Radiation 

Exposure Compensation, or RECA benefits, Section 

5 recipients receive an additional $50,000. Of 

course, that's in addition to the $100,000 that 

they receive from the Radiation Exposure 

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38 

Compensation Act. 

And in Denver that's what we handle 

principally, is the Radiation Exposure 

Compensation Act claims. We'll be showing you a 

pie chart here, and a significant part of the 

claims or benefits paid through that pie chart 

are the RECA claimants. These are claimants that 

were established for this entitlement under 

Section 5, then we would provide $50,000 to the 

employee or the survivor; and if it's the 

employee, then they also have the entitlement for 

the covered condition that this provision or this 

Act provides for. 

The four conditions that are covered are 

cancer, chronic beryllium disease, beryllium 

sensitivity, silicosis, nd the illnesses under 

Section 5 of the RECA. 

Program highlights are that it was enacted 

October 30th, 2000. It went effective July 

31st,and Secretary Chao presented the first 

payment on August 9th. Amendments were enacted 

to the provisions on December 28th, 2001. 

This is the overall organization chart, if 

you wish, or description of how services are 

delivered across the United States. We have four 

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District Offices. Federal staff number 122 --

this slide is somewhat dated; that number is a 

little bit larger, but not by much. Contractor 

staff are 26, and then there's a break-out. 

National office staff, 25 federal staff, 

including the director; contractor staff, nine. 

And then groups that fall within the 

administration are Director, Automated Data 

Processing, Policy and Procedure, Outreach and 

Training, and Final Adjudication Branch. 

So the Director's Office is basically Turcic 

and Roberta Mosier and their staffs. Automated 

Data Processing are Jerry Delo, and the ADP 

staffs that work with him to set up systems. 

Policy and Procedure are Rachel Leiton, who is 

the branch chief there. Outreach and Training 

are generally headed up by Carol Bronowicz, and 

many of you know Larry Hoss, and their staffs 

that provide outreach. Final Adjudication Branch 

is Luann Kressley, is headed up by Luann 

Kressley. Each one of these Final Adjudication 

or the National Office FAB, in fact, also has a 

presence in the regions. The local FAB is headed 

up by Joyce Terry. 

This will give you a jurisdictional idea, 

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Colorado in blue, the 15 states that we provide 

services for. And then you have Cleveland up in 

green, Jacksonville depicted in red, and Seattle 

in yellow. 

These are the participants in the claims 

process. These are our constituents: NIOSH; 

medical providers; Social Security Administration 

for verification of employment; claimants who are 

filing, both the survivors and as employees; 

corporate entities who provide us with 

information as to employment and if they have 

health records or health information, we're 

provided that; the Department of Energy; and the 

Department of Justice, all feed into the claims 

process that is handled by the Department of 

Labor. 

This is probably a number -- these are 

numbers that you probably will be interested in. 

Effective June 13th, total number of claims 

received is just under 30,000. Total cancer 

claims numbered 19,000. Total beryllium 

sensitivity are at about 1,019. CBD claims are 

1,010. Silicosis, 534. RECA claims are 3,512, 

and other claims are about 4,496. 

This is the program statistic as of June 

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13th. Claims processed with final decision --

that's a decision by the Final Adjudication 

Branch -- approvals, 3,531; denials, 1,277. 

Claims processed with recommended decisions --

these are decisions by the Energy Comp District 

Offices which have not become final, but are sent 

to the FAB for review as a final decision -- the 

approvals were 4,176, denials were 3,262. Cases 

awaiting employment verification number about 

5,300. Cases sent to the NIOSH are 4,914. 

Payments issued are 3,170, and if you recall, I 

said that the RECA comprises the biggest majority 

of this payment, at about 1,200. And amount of 

compensation paid, well, that's a big number, 

$237 million. And of course, again, that was as 

of June 13th. 

This is just -- this is a break-out of the 

same figures you saw in the previous slide, to 

give you a visual and an idea as to where the 

number of claims are outstanding, listed at 

10,903. 

This is the last slide. As of June 13th, the 

yellow indicates overall acceptance of claims. 

These are final decisions, not proposed. You can 

see there's 73 percent acceptance, 27 percent 

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denial. And again, of the accepted cases, more 

than likely the majority of these are Radiation 

Exposure Compensation Act cases, which total 

payment of $50,000. It can be broken up by 

survivorship. As the District Director in Denver 

I authorize payment on these, and it's not 

uncommon for me to authorize payments of about 

$4,000 to $6,000 for anywhere from four to eight 

siblings of survivors when there is no surviving 

spouse. 

So that is the status of our program at the 

present time, and I'm willing to take questions. 

I'm sure some of these slides may need 

clarification. 

DR. ZIEMER: Thank you, Bob. 

Let's open it for questions then. 

Roy DeHart. 

DR. DEHART: Just a comment on how you're 

doing the job validation. There have been 

complaints that people who have been employed in 

the environment for 20 to 30 years are having to 

go through their files personally, their own 

files, to send information -- I'm from Tennessee, 

so it would be Jacksonville? 

MR. MANSANARES: That's correct. 

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DR. DEHART: Could you tell me why that's 

necessary, why there isn't records available on 

these people who have been employed in the 

nuclear business? 

MR. MANSANARES: I think that the experience 

as to -- this, for us, as a claims manager, would 

be factual evidence. And for anyone who's 

involved in claims development for factual 

evidence, which would be comprised of employment 

records or marriage certificates, children's 

birth certificates, and things of that nature, I 

do not personally understand why some of these 

records are not available, other than the 

explanations that are given me by the Department 

of Energy and others that are involved in the 

record retention process. I think that the 

experience of the claimant depends and varies as 

to where in the country they're worked and for 

whom they worked. 

We use alternative procedures for 

establishing employment verification. If that 

primary evidence is not available from the 

employer, there are secondary and tertiary pieces 

of evidence that we can use to establish the 

person's presence or employment at those sites. 

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And they can vary from -- oftentimes birth 

certificates will indicate the occupation of a 

parent. Many times there are clippings or 

newspaper notices that individuals retain because 

they were involved in a process or in a success 

that a particular facility experienced. So these 

are other types of evidence that we will use. 

Also, if you noticed in the constituents to a 

claim slide here, we had the SSA, the Social 

Security Administration, from 1938 to the present 

time, oftentimes with a list of the individuals 

working for a contractor or vendor at a specific 

location, and we would use that information. And 

of course, we will also go to the affidavit. As 

long as the affidavit has a value that can be 

established and it is supported by other evidence 

in the file, then we will make a finding of 

employment and proceed as is necessary. 

But yes, we are experiencing at some sites --

some of the District Offices are experiencing 

difficulty in obtaining records. Although the 

initiative and the efforts of the NIOSH, for 

instance, they're finding records that previously 

we were told were not there. But as a result of 

their on-site inspections and their interactions 

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with the records keepers, they've turned up 

records that we're able to use in Jacksonville, 

Denver, Cleveland, and Seattle. 

Did I answer your question, or did I just 

waltz all the way around it? 

DR. DEHART: No, I think you answered it. 

MR. MANSANARES: Somewhere, okay. 

Yes, sir. 

DR. MELIUS: What is the rate of claims 

coming in now? 

MR. MANSANARES: It varies by District 

Office. Initially in Denver -- and I can talk to 

Denver -- I think we have about 4,400 claims inhouse at the present time. We have a staff of 

about 15 claims examiners at the present time, 

and many of those are recent hires. But I would 

say that prior to March we were running -- it 

varied 300 to 400 claims. Last week we had 89 

claims. It's been running less than 100 claims 

per week at the present time for Denver. 

DR. ZIEMER: No further questions? 

(No responses) 

DR. ZIEMER: Okay, thank you very much. 

MR. MANSANARES: Thank you, sir. 

DR. ZIEMER: The next item on our agenda is 

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the report of the dose reconstruction workgroup, 

and that was -- the workgroup was headed by Mark 

Griffon. 

And Mark, if you would, before you get into 

your slides, go ahead and introduce the members 

of the workgroup, then proceed. 

MR. GRIFFON: Thank you. Yeah, I was going 

to -- I didn't have a slide on the members of the 

group, but the members of the group, going around 

the table, Genevieve Roessler, Roy DeHart, Bob 

Presley, Rich Espinosa, and Jim Neton as our 

NIOSH representative on the working group. 

After I introduced the members, I also wanted 

to say it was a process. We ended up having two 

conference calls as a working group. The first 

conference call we had, we did generate minutes 

from that and we sent them around to the Board, 

and I believe they got posted on the web site. I 

haven't checked that. 

The second meeting of the working group was 

actually last week, so rather than generate 

minutes we took the time to generate this 

presentation. And we ended up having pretty good 

discussions on some issues. I think we ended up 

with some recommendations. I think we need to 

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flesh out some other issues to end up in the form 

of a recommendation actually, and we'll get to 

that as we go through the slides. 

The charge was to develop options to review 

the scientific validity and the quality of the 

NIOSH dose estimation and dose reconstruction 

efforts, and this comes right from the statute. 

The four main issues that we ended up, or I 

consolidated these into four main topics that we 

discussed, was who would conduct the review, how 

the selection of cases -- how would we select the 

cases, the protocols that we would use for the 

review and sort of the scope of work for the 

Board to review the cases, and then the reporting 

out of the reviews that the Board does to the 

public and elsewhere. 

Who will conduct the review: We talked about 

some different options, either with independent 

experts along with Board representation, and this 

was probably something that we agreed the most on 

as a recommendation. We felt pretty strongly 

that we needed an independent panel with 

independent experts, but we also needed Board 

representation and Board oversight. I think we 

noted that the Board is ultimately responsible 

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for these reviews, so the Board would certainly 

have to maintain oversight on this process. 

As we were developing that option we talked 

about several issues: Whether these should be --

whether we should have individual experts, 

contractors, or a consortium, and it might be a 

consortium of several contractors; the size of 

the panel, what was a workable size; the 

availability of independent experts. The issues 

that came out here was that as NIOSH is in the 

process of hiring a contractor to do the dose 

reconstruction, we all know that there's a 

limited pool of experts in this area. So we just 

thought that may really be an issue here. And 

then the selection, which was more of who and how 

do we do the selection process. And the nature 

of the panel meetings, should the independent 

expert panel meet, should they have public 

meetings? They obviously have to get their work 

done, but there also has to be a level of 

transparency of what that panel's doing. 

So along the lines of the expertise, 

individual experts, contractor or consortium, we 

talked about the issue of they had to have a wide 

variety of expertise to review the cases. 

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Sometimes there's individual experts out there 

that really their strength lies in internal 

dosimetry, and they're less skilled in reviewing 

external radiation dose cases. Or they may have 

worked in certain sectors of the nuclear industry 

and not be familiar with reactor exposures and 

things like that. So we thought that was one 

criteria we needed to discuss further. 

Also, the second one, important to have 

credibility to do objective work. And this again 

was our attention to the concern that the public 

has to have faith in this Board as doing an 

independent review. And along with transparency, 

we thought it was important to have maybe -- the 

panel have representation that maybe was outside 

the box a little bit. If it was the same -- if 

it was perceived as being the same -- this 

overlaps a little bit with the next item, which 

is the conflict of interest -- but it was if 

there was a perception that the same people were 

reviewing that have always reviewed the cases and 

always done the dose work at these sites, then 

the claimants on the other side, especially the 

rejected claimants, may say, of course, we 

certainly saw that one coming. So we think that 

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-- we thought that there might be a use in having 

expertise that was sort of outside the box that 

could be critical of the model assumptions, et 

cetera. And if after all that the cases stood 

up, then they have more credibility actually. 

The size of the panel and the availability of 

the experts: One model we turned to in our 

review -- and Jim Neton provided us some 

documentation, a GAO report which I think was 

sent around to the whole committee. And I 

followed up on the NAS folks, and there's 

actually on their web site they have some 

documentation of their scope. They are required 

to do a review. They have a NAS subcommittee 

headed, chaired by John Till, and I think 

currently they have nine experts on this panel. 

That was one model we looked at. We're not sure 

that's the right number. That's the model 

they're using. Some folks thought that was a 

little large and may be unwieldy, actually, but 

it was something we turned to. And then again, I 

mentioned the small pool of experts that may be 

left available for this. 

The selection, the Board felt pretty strongly 

that -- or the working group felt pretty strongly 

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that the Board should be responsible for the 

selection of who. And Jim Neton, before I 

overstep my legal bounds here, I'm going to ask -

- I think NIOSH would actually have to do the 

contracting process. I don't want to get this 

wrong, but we felt pretty strongly that the Board 

should make the determination and decisions on 

who, whether it be individuals, contractors, or a 

consortium. The Board should have the input on 

that, and NIOSH can work out how to do the 

contracting on that. 

As far as meetings, we felt first that the 

panel should report to the Board. Again, this 

goes back to the Board being responsible for 

these reviews. And again, we emphasized again 

and again, this has to be a transparent process. 

So somewhere -- and that's, again, those reports 

back to the Board would be public meetings, and 

the public would be able to see what's going on. 

Another recommendation was the workgroup felt 

that the Board should select the cases for 

review, and we felt also that we needed to have a 

stratified sampling of cases. I believe in the 

case of the VA it's more of just a random 

sampling. I'm not sure of that, but the way they 

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describe it on their web site it's a random 

sampling. But due to the nature of the DOE 

sites, we felt it behooved a stratified sampling 

strategy. And we talked about some parameters. 

These may not cover all, and I think this is an 

area where we may need to be -- give a more 

specific recommendation. But the site, the 

exposure type, cancer type, time period are some 

possible parameters that we may stratify on. 

The number of cases, overall case load 

greater than 2.5 percent. We came on that number 

because we turned to this VA model. The VA has 

selected about 100 cases out of an overall of 

about 4,000, which is about 2.5 percent. And we 

thought -- we tried to hone in on a number, but 

we said, well, at least we think that it should 

be greater than 2.5 percent, the rationale being 

that we've got to have a stratified sampling, and 

that's going to create more cases that have to be 

reviewed. It seemed to be a reasonable answer to 

that. So we don't know the upper bound of that, 

but we think that it's probably going to be 

something greater than 2.5 percent of the cases. 

Again, the workgroup agreed that the Board 

should establish the protocol for the panel. And 

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protocol and -- scope of work/protocol, I might 

say -- scope of work for the NAS review, we 

looked at the scope of work that was described 

for the NAS panel, and we discussed potential 

tasks for the scope of work and the type of 

review. I'll go into those a little bit here. 

These are the -- some of these overlap pretty 

well with what was done on the -- what is -- I 

guess what was Congressionally mandated to the 

NAS as the scope for their review of the VA 

cases. I hope I got that right. The panel 

should determine whether or not the 

reconstruction of the dose is accurate. And the 

parenthetical point is important. I'm doing this 

for Jim Neton. He reminded me several times that 

accurate to the extent that it's good enough to 

determine eligibility. And I think that's an 

important point of this, because sometimes, as 

NIOSH has said, they may not have to be very 

accurate. If someone has really high doses they 

don't need to fine tune it that much. They 

trigger, they're in; it doesn't matter. And if 

they're very low, on the other side, they may not 

have to fine tune as much. So the panel should 

determine whether or not the assumptions, 

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individual case assumptions or assumptions that 

are applicable to groups of people, are credible. 

So that's the accuracy of dose estimate, the 

credibility of the assumptions. 

The panel should determine whether or not the 

data from DOE or other sources is accurate. And 

the panel should determine whether or not the 

estimate of the dose is a reasonable estimate, 

and “reasonable estimate” being a term that was 

in the statute. 

Now, the panel should determine whether or 

not data from DOE or other sources is accurate, 

that item generated a lot of discussion. We felt 

pretty strongly -- and this, I think, goes to 

Sally's points earlier, that in order to maintain 

transparency of this process and to give 

credibility to our review, we need to in some 

ways check that to make sure that NIOSH went 

back, and the data they got was good quality and 

was useful for -- was good enough for determining 

whether people were eligible. So now how we get 

there is another question, but we think that is a 

very important aspect. 

And that sort of leads to this, too, which is 

this tiered review idea. The three methods of 

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review here are simplest to most complex or most 

extensive. And the initial review of the cases 

and the calculations, that will be just sort of 

looking at NIOSH's or the contractor's work and 

checking all the assumptions, checking the 

calculations, that sort of thing. 

The next step is to check a little further, 

and on a certain number of cases you might look 

at quality of the data and how NIOSH decided, if 

there was inconsistencies, for instance, between 

personal interviews and the records, how did 

NIOSH rectify that, and how did NIOSH handle that 

in their reconstruction. 

And then the third is even more extensive, 

where we actually want to see what was requested, 

what did NIOSH request from DOE, were all the 

records -- and I put “all” in parentheses, too --

were all the records provided from DOE. And the 

question that was chased around by the working 

group was, well, how do you -- as it is by many 

researchers at the DOE sites, how do you know if 

all the data was reviewed if you don't know what 

all the data is? So it's a -- but we thought 

that is, again, an important point because of 

some people's concern about the DOE either 

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destroying records, destroying data, et cetera. 

We think that the Board should have some level to 

look into what kind of data is coming from the 

DOE, not just the secondary steps. So we felt 

that was an important point. 

The review panel reports, the workgroup 

agreed that the panel must first report back to 

the Board, and then the panel reviews and the 

reports of panel activities, policies, and 

procedures should all be made available to the 

public in de-identified form, obviously. But 

that, again, is for the transparency for that. 

So that's the report out by -- I think that's it. 

I just wanted to say the last thing -- I 

think the three areas that -- and we discussed 

this -- that we may, after discussion with the 

full Board here, we may want to go out tonight 

and fine tune three areas for more specific 

recommendations. One of them is the makeup of 

the panel, flesh that out a little better; also 

the selection of cases; and then the scope of 

work for this independent review panel. So I 

think we agreed that the panel would meet tonight 

if we needed to. 

Did we agree, panel, or working group, I 

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mean? 

(Affirmative nods) 

MR. GRIFFON: Roy says as long as he gets ice 

cream. 

DR. ZIEMER: Thank you very much, Mark. I 

believe, based on those comments and what you've 

just now suggested, probably it would be 

worthwhile if we got the initial feedback from 

the full Board and reactions, comments, 

suggestions that the committee could use to -- as 

they huddle tonight and refine this. And then we 

can revisit it tomorrow in perhaps in what we 

might call more final form, and see if the Board 

is ready to take formal action tomorrow or if 

further refinement is needed. 

I think we're not under tremendous pressure 

to necessarily finalize it at this meeting, 

because we know that there's going to be a little 

time lag before cases are -- until there's a body 

of cases to be looked at. So we can be fairly 

deliberate, if necessary; but we want to move 

ahead, on the other hand, and be ready to hit the 

ground running. 

So let's open it up at this point for 

questions, comments, and other reactions. I 

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think the subcommittee has done a very good job 

of thinking about the issues that have to be 

addressed, and we appreciate the input that 

you've given us here. 

Okay, Tony. 

DR. ANDRADE: Mark does a good presentation. 

I appreciate all of the work and the thoughts 

that you and the panel put together with respect 

to the -- the questions are very important 

questions that will face this panel, group, team, 

whatever you want to call it. 

Let me start from the back end of my though 

process, and then I'll get into what might be 

considered a very quick straw man on the 

recommendations. 

What would happen if this team were to 

somehow find a shortcoming, a potential 

shortcoming, a disagreement with a dose 

reconstruction activity, even if it was for a 

single individual, or perhaps the way those dose 

reconstructions were being conducted? Perhaps 

the answer's not available right now, but it's 

certainly one that's going to have to be 

addressed at some time. 

My next statement is in the form of a 

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comment, and it's more along the lines of a 

recommendation that might be considered as a 

straw man for further discussion this evening. 

For the John Till group, my own personal 

experience has been a group that -- how shall I 

say -- it seeks to keep the maximum number of 

contractors employed. I would strongly recommend 

the following criteria for a team. 

Number one, that we should consider no more 

than two relevant and independent experts. What 

I mean by relevant is, as you pointed out, 

experts that are familiar with the particular 

type of dosimetry that was conducted at a 

particular site. If it happened to be 

Washington, for example, you might want to have 

reactor experts, reactor health physicists. 

Number two is that I think it would be 

beneficial to have at least one, and perhaps even 

two, Board members be members of that team, so 

long as they have no conflict with the operations 

of the site that is being reviewed. For example, 

I would recuse myself from any work that was done 

in review of work at Los Alamos. 

And number three is that I would recommend 

that whatever panel is put together, that they be 

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allowed to conduct at least two reviews at two 

separate sites for that minimum number of reviews 

that you're talking about, for the following 

reasons: One is that a working team develops a 

relationship and a rapport, perhaps during the 

first experience they have, and they start to 

learn about what is important, what sort of 

records need to be considered and kept --

alluding back to what Sally was talking about 

this morning. And it would be a tragedy to lose 

that experience if that panel is disempaneled 

without going back and approaching a different 

site with a whole different way doing -- that had 

a whole different way of doing business without 

this same type of approach, so that they can do 

an apples-to-apples comparison of the state of 

affairs at the two different sites. 

So those are my comments for now. 

DR. ZIEMER: Thank you. 

Other comments? 

Yes, Jim. 

DR. MELIUS: Yeah, a number of comments. 

I would agree with Tony. I guess number one 

is I think we need to get this review going as 

soon as feasible. It's not something we should 

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put off until we get enough numbers to sample 

from or whatever, whatever kind of plan we --

tiered plan we develop. Because I think sort of 

the credibility of the process is important, the 

overall process is important, and we don't want 

to be in a position where we have to redo a bunch 

of dose reconstructions or whatever. And the 

credibility's particularly important at an early 

point in time in this process. So I think we 

ought to try to get as far as we can today, and 

then push NIOSH to get whatever we recommend 

implemented, doing that. 

Secondly, I like the idea of sort of small, 

smaller teams making up a panel that reviews 

cases, and that they also review cases for more 

than one site so it's not just a site-specific 

panel. They may draw -- well, let me get to that 

in a second. But I think that might be a way of 

sort of keeping the process moving quickly, 

efficiently, and at the same time building some 

confidence and expertise. So I think that way of 

developing a panel may work, but any way we do it 

it's logistically complicated because of 

conflicts and availability of the appropriate 

experts. 

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Third, I think it is important, and Mark's 

comments, this whole issue is is all the data, 

available data or information or appropriate data 

and information, being considered in the dose 

reconstruction? I think that's going to be 

probably the major concern the claimants have, 

that, oh, I know there's other information that's 

being hidden that wasn't available, whatever. I 

think when we get to the special exposure cohort 

proposal from NIOSH, I think that is even --

emphasizes and makes that even more important. 

Is all the data really being considered? 

So I think we need some way as part of this 

process of getting that information. And whether 

that’d be some way of accessing some people with 

long-term knowledge of the site, just to make 

sure that they -- NIOSH has considered all of the 

available information, or all the available or 

appropriate information is made available to 

them, I think is key. And I think whatever we 

can do to get that would really help with the 

credibility of the overall process. And that may 

have to be done a little bit separately than the 

group of experts who would do the dose 

reconstruction. At the same time it's got to be 

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tied to that, because I think you want to be 

looking for appropriate information, not just 

every piece of information that's not relevant to 

what is being done for this dose reconstruction. 

DR. ZIEMER: Thank you. 

Yes, Henry. 

DR. ANDERSON: I guess I would agree that we 

probably need to get started fairly quickly. It 

would seem to me that as we move into meeting 

eight, nine, and ten or whatever, the activity of 

the Board will focus more and more on these 

reviews. 

It would seem to me what we may want to do is 

rather than have a few Board members be on the 

panel, establish panels so that all Board members 

would either rotate on the panel or would be part 

of a separate panel. So we may -- I also agree 

that smaller numbers is probably more than 

adequate. So I would think in terms of setting 

it up so that a few Board members would not bear 

all of the work brunt, and that everybody would 

in fact be part of these panels so we'd have the 

experience of, when it comes back to the panel or 

the Board for final approval, that we'd all have 

worked through some of these individually but not 

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have to work through all of them. So that would 

be one. 

The other is it would be interesting to see 

or maybe hear from the VA panel what's their 

protocol, maybe have them come at a meeting and 

just say what's been their experience, how do 

they do it. It seems to me we'll need a number 

of things. Being an epidemiologist, I would look 

in terms of wanting to analyze data, looking at 

perhaps case-control things to look at, what are 

the parameters, perhaps even datasets, that might 

well predict who is accepted and who isn't 

accepted, over and above what the actual 

exposures were. It may well be the quality of 

the data may become very obvious in one side or 

the other. 

So I would think we're going to have to have 

some check sheets of what's there, and then the 

validation process. That may be something 

contractors could do. But I would think we need 

to have a protocol. We need to have a data 

collection system so that as we get these we'll 

be able to see, and you may identify that in this 

one, gee, look, they had that data; and this one 

is missing that data, and is that because they 

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65 

couldn't find it, or what is the issue, so we 

kind of have all-encompassing, all possible 

sources that you'll get through all of the 

systems, and then we'd want to check to see does 

this particular case have those. And that would 

lead us to the question, if they don't, was it 

not collected, or was it -- is it missing? And 

that might be one way to look at some of that. 

So I think, again, everybody needs to be 

involved, not on one big panel, but on multiple 

panels. And if we want to look at where people 

have conflicts so that you'd then be assigned to 

an overlapping two sites, that might be the way 

we could break it up, and people would then 

become expert in those particular two comparison 

sites. 

DR. ZIEMER: Thank you. 

Wanda. 

MS. MUNN: Yes, I'd like to agree especially 

with one thing that Henry said. With respect to 

data that we're looking at, I was really bothered 

during Mark's presentation by the word "accuracy" 

of data. I can see no way that anyone can look 

at 50-year-old data and determine whether it is 

accurate. We might be able to have a shot at 

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making some assessment of the quality of the 

data. But accurate? I don't know how you'd do 

that. I just don't know how to do that. And if 

we start off saying one of the things we're going 

to do is try to identify the accuracy of the 

data, it seems to me we're setting ourselves up 

for an impossible task. The quality, the 

quantity, the source can be determined. But how 

do we say, even if the data is complete, that it 

was accurate from 50 years ago? 

DR. ZIEMER: Let me insert at this point, and 

I think this is an issue that the NIOSH people 

are trying to address as they look at the various 

sites, because with each system there is 

calibration information that in fact allows you 

to establish some level of accuracy with some 

degree of error or uncertainty. So in principle, 

you can do it if they have enough information on 

the calibration processes. 

MS. MUNN: Degree of confidence I can 

understand, but I'm concerned about our obsession 

with accuracy. 

I certainly agree with everything that's been 

said here relative to the desirability of small 

groups as opposed to large groups. 

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67 

I'm concerned with the comment about 

stratification. I understand and agree that some 

significant amount of it is necessary, but that's 

one of those areas where you can get yourself 

into a real quagmire trying to get too specific 

in identifying too many different strata. 

And the number, the percentage of cases, is 

one of those things that perhaps we should look 

at a little more carefully. I don't know that we 

achieve an awful lot by identifying a specific 

percentage. Perhaps there might be some other 

type randomness that would serve as well. 

This is a question that I don't know the 

answer to. I recognize the real problem vis-avis identifying well-qualified people to do this. 

Is there some possibility that one of the things 

which might also add one more degree of 

objectivity is the consideration of individuals 

from outside the United States who are qualified 

to do this type of thing? I can think there are 

maybe individuals in Britain, for example, who 

would have the same general broad experience that 

we would want, also maybe France. Don't know 

whether that's even possible for us to do, but 

it's worth thinking about. 

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DR. ZIEMER: Thank you. 

Henry, again. 

DR. ANDERSON: Yeah, on the two and a half 

percent, I think, one, we have to ask ourselves, 

we could do a power calculation on our likelihood 

to be able to detect the degree of problem that 

if we're just checking to see were errors made, 

we can look at what NIOSH is going to be doing 

for their QA/QC activity and see whether we need 

to do something similar. 

The other thing we may want to think about if 

we do a relatively small percentage is do we want 

to have an appeal process where individuals could 

request to have their records reviewed, and we 

then have a process for selecting a certain 

percentage of those so that it -- while that's 

not part of a random or a stratified sample, 

there may be issues that in a random process 

wouldn't be identified when an individual may 

say, gee, you know, they totally ignored this, 

and it wouldn't get into a –- the review process. 

So we may want to think in terms of having a 

capacity for individuals to say, gee, I'd like to 

have this reviewed by a panel. We'd have to put 

some restraints on how many of those we could 

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69 

handle, but that might be another way to allow 

individuals who will be the ones that may be 

concerned about it to have their records 

reviewed, and then you would have some process 

like that. 

DR. ZIEMER: Maybe we can ask the staff at 

this point if there is a type of appeal process 

already for those, particularly in the middle of 

the scale, I think. But I'm not sure if you're 

talking about that, or the Board acts as appeal -

-

DR. ANDERSON: No, no, no, not -- only as to 

what the panel will be doing as the reviewer of 

the records and the other activities. If we set 

as our goal here what is this review going to 

accomplish, and if the review is to determine the 

completeness and the systematized or systematic 

approach that's been used to be sure that things 

are not missing or whatever, individuals who 

believe their data is more missing than somebody 

else's, we might have that as opposed to the 

decision process that was made. 

DR. ZIEMER: Perhaps this parallels the point 

that Tony made originally, and let me -- and I'll 

ask Tony this question, because you were sort of 

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saying bottom line, what happens if the panel 

says a mistake was made or that the database is 

inadequate, or there's some flaw in the process 

of the dose reconstruction? And I believe you 

were suggesting that perhaps as part of this 

process we think about how do you handle that. 

What happens when that occurs? 

And that might be something, Mark, that the 

group should also address. What happens if in 

fact there is a concern raised? Does it bounce 

back to staff to redo something, or just what 

happens? I don't think we have to answer that 

right now, but certainly that's an important – 

Was that the nature, Mark -- Tony, of what 

you were asking? 

DR. ANDRADE: That was precisely what I was 

asking about. I know that it's already law 

insofar as what the appeals process will be for 

those people who would like to have their cases 

reviewed. However, as an advisory body -- again, 

not an expert body -- if we do find something 

lacking in terms of the quality of reviews or a 

review, the open question is what do we do? How 

do we feed back into the process? And I think 

that's really the route that we should take. 

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71 

DR. ZIEMER: Additional input? 

DR. NETON: This is Jim Neton. I think 

that's been addressed, in the sense that if the 

case has been through final adjudication and then 

the person has appealed, and essentially he had 

lost or been turned down at that point and the 

Board has reviewed the case, I think what would 

happen is the recommendation would be referred 

back to NIOSH. We would evaluate that, and then 

with our capability to turn back to the 

Department of Labor and say reopen that case, we 

feel there's new information that's come to light 

that would warrant reopening that case at that 

time. So I think that the way the mechanism 

works is it would all come back through NIOSH to 

be able to -- we would recommend the case be 

reopened at that point. That has been addressed. 

DR. ZIEMER: Jim, is that -- do we know for 

certain that that process is already well 

codified in the --

DR. NETON: Well, I think Ted could probably 

answer this better than me, but I think the last 

rev allowed NIOSH to --

DR. ZIEMER: For a variety of --

DR. NETON: For a variety of reasons, one of 

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which would be the Board's review. That's 

essentially, I think, the only mechanism that's 

open to reopen a case that's been through final 

adjudication. 

Is that correct, Ted? 

MR. KATZ: Yeah, it's -- Ted Katz. The 

specifics are not in the reg. They're in the 

implementation. But it's broad enough as it's 

written in the reg to accommodate that perfectly. 

And just the other thing I would just mention 

is obviously, for dose reconstructions that are 

recently completed, there may be an opportunity 

to -- if those go before the Board for people who 

are unhappy with those before the claim is 

finally adjudicated, then that sort of shortcuts 

the process in terms of how do you remedy a 

problem if you find one. 

DR. ZIEMER: Thank you. 

Roy. 

DR. DEHART: I would like to thank you all 

for joining us on the frustration of the amount 

of material that we're going to have to consider 

here. 

I find it difficult to perceive in my own 

mind just what we're talking about. I haven't 

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73 

seen a case, so I have no idea what the data is, 

what the datasets consist of, what the interview 

information happens to be, whether or not there's 

classified data in there that would require Q 

clearance of those of us who are participating in 

the reviews. There is a lot of information that 

-- I would like to ask NIOSH if they could put 

together for us some dummy files so that we can 

begin to see what the mass of information is 

going to be that we're going to be responsible 

for reviewing. 

DR. ZIEMER: I think I heard a sort of a nod 

or a yea? 

MR. ELLIOTT: Larry Elliott. Yes, we can 

certainly do that. We can prepare some -- I 

think what you should start with is the deidentified administrative record for the file. 

That contains everything that was used to support 

the file -- the case. 

DR. NETON: That may be very difficult to 

accomplish. These cases have 4- or 500 pages of 

information, in many cases, that we would have to 

go and redact virtually every single page, if we 

could do that. 

MR. ELLIOTT: But I think we will do that. 

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74 

DR. ZIEMER: I think Roy is requesting -- we 

need to get a feel for what we're talking about. 

It's not a simple matter of having a few pages 

and a quick calculation, saying everything looks 

good. 

DR. NETON: Well, I just wonder if the Board 

couldn't -- the small working group in 

particular, just looking at an actual case rather 

than redacting one. It would be simpler to just 

turn over a case or two to the working group, 

rather than to start redacting thousands of pages 

of information. Just a practical suggestion. 

DR. ZIEMER: That might be a way for -- the 

working group could then develop a feel and 

report back to the whole, full Board on the 

magnitude of the effort. 

MR. ELLIOTT: We'll provide the Board 

something, the administrative record, and we'll 

take into consideration what needs to happen to 

provide that to you. It'll be done. 

DR. ZIEMER: Wanda. 

MS. MUNN: Or alternatively, it may be 

simpler and less work in the long run to just 

simply have our working group go visit NIOSH and 

talk to the staff, take a look at some of the 

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files. That might be the simplest way to get a 

feel for what has to be done. 

DR. ZIEMER: Again, I don't know that we have 

to decide that at this moment. 

But maybe, Mark, as your group addresses this 

later today and talk with the staff, and you can 

develop a strategy on how that might best be 

accomplished. Is it a visit to Cincinnati, or to 

a site, or what --

MR. ELLIOTT: It would have to be in 

Cincinnati, but we could accommodate that kind of 

a visit, too. Maybe it's a combination of both 

those things that needs to happen. 

DR. ZIEMER: Mark, let me ask if you have 

additional questions for the full group here now 

before -- do you have enough sort of feedback and 

ideas and stimulating comments that will be 

helpful to your group as you proceed? 

MR. GRIFFON: Yeah, I hope so. And Roy 

pointed out well that that was part of our 

frustration in this, was sort of talking in the -

- without being able to see case files and know 

the process, and know how many cases from what 

areas, we were kind of -- so I think it's all --

a lot of the points that came up, although there 

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76 

were certainly some new ones that we appreciate, 

a lot of them we have jumbled around within our 

conference calls, and where we couldn't quite 

come to some conclusions. So that was very 

helpful. 

I should point out also that we also noted 

the -- I think most of us agreed that the ninemember panel wasn't a construct that we were 

really looking at. We were looking at less 

members. And what we did want, we did talk of 

one to three Board members. And we threw around 

the notion of rotating Board members, too, so --

DR. ZIEMER: I'd like to get a, in fact, a 

kind of a straw poll feel for how the Board 

reacts to -- I guess it was, Henry, your 

suggestion that there be perhaps multiple groups, 

allowing each of the Board members to participate 

in some way in this. How many like that idea and 

would be willing to be involved in such a group? 

(Show of hands) 

DR. ZIEMER: We're not holding you to this. 

just want to get a feel for whether -- is Henry 

the only one that likes this idea? 

(Laughter) 

DR. ANDERSON: You won't get volunteers 

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otherwise. 

DR. ZIEMER: Mark. 

MR. GRIFFON: I'm sorry, one point of 

clarification on that. Henry, in your model are 

you talking about multiple panels? 

DR. ANDERSON: I was just assuming that we 

would kind of spread the work around. Now 

whether it could be rotating people but a fixed 

number of experts, that, I think, has some 

benefit versus multiple panels. I think it 

depends on how long it takes to do a case review 

if we're going to do this. That's why I would 

ask the VA or whatever, if we're going to have 20 

files to review and it takes several hours per or 

a day per, the group is going to get bogged down 

unless you have multiple groups. But rotating 

certainly would be a way to do it. 

DR. ZIEMER: And if you do it that way, 

sometimes what you do is you give a common file 

to several of the groups to sort of crosscalibrate them, to see if they --

DR. ANDERSON: Right, yeah. You’d have to 

kind of set up a study design, as it were. 

DR. ZIEMER: Right. In other words, is the 

outcome on the panel or did you reach the same 

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78 

conclusion if you have a different set of 

reviewers? 

DR. ANDERSON: Right. 

DR. ZIEMER: Bob. 

MR. PRESLEY: I agree. I agree with Roy and 

with Henry, because the way our schedules are at 

times, a lot of people are not going to be able 

to be there, or are going to have a conflict of 

interest. And if you had maybe two panels that 

could swap back and forth with your experts, I 

believe that would be a lot better. 

DR. ZIEMER: You have additional questions 

you want --

MR. GRIFFON: I think we have something to go 

on tonight, so thanks for the input. 

DR. ZIEMER: Larry. 

MR. ELLIOTT: One of the ideas that I heard 

expressed -- I'm not sure as to who expressed it 

-- but was to hear from the VA about their 

experience and their protocol. And I'd ask you 

to kind of think through that a little bit. Do 

you want that as a presentation to the Board? Do 

you want to have just the working group interact 

with the VA and report back to the Board? How 

would you -- think about how you would like to 

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79 

effect that so that we could put it into play for 

you. 

DR. ZIEMER: Well, let's get it -- let's find 

out right here. 

MR. GRIFFON: Well, just a question on that, 

because I did some follow-up phone calls. And 

the NAS -- I never did get a hold of John Till, 

as I mentioned -- but the NAS sort of stopped --

they weren't very specific with protocols. They 

said they couldn't get specific with me with 

protocols. I don't -- is that something they can 

share now? Do people know? Or are they still 

working on their protocols, and -- because the 

most I got was on a web site from NAS, where it 

described the scope of work. And we did look at 

that, and those last slides sort of overlap with 

some of that. But as far as specific protocols, 

they said they couldn't share at this point. 

DR. NETON: I think I may be able to address 

that a little bit. The NAS review is really a 

one-shot review that was commissioned as a result 

of (inaudible) investigations, so it has a 

somewhat different focus than what you guys are 

all trying to set up, which is an ongoing review 

process. So I suspect that they don't want to 

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80 

review -- to release their protocols because it's 

an ongoing study that's not been completed. So I 

don't think that they're probably willing to 

share at that time, but once the study's released 

I think they can share with all. 

DR. ZIEMER: So it's a different --

DR. NETON: It's a different focus than what 

we're trying, or what you all are trying to do 

here. So it's relevant to look at what they're 

looking at, to examine what they're looking at. 

But their process and protocols, I think, are 

somewhat different. It's reviewing 20 years 

worth of work, or something like that. 

DR. ZIEMER: It appears, then, that that 

wouldn't be so useful. Is that correct? Is it 

the VA, or the -- the VA staff versus the NAS 

review panel. 

MR. ELLIOTT: Right. I think what Jim's 

characterizing is the NAS review of the VA --

DR. ZIEMER: Well, then that may not be so 

helpful. 

MR. ELLIOTT: If you want to hear -- yeah, 

right. If you want to hear about the VA model 

and their approach in reviewing dose 

reconstructions, that's what I -- or any other 

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81 

models that you might identify for us, and how we 

might bring them to your awareness. 

MR. PRESLEY: Would there be a possibility, 

if we did go to Cincinnati to review cases, to 

have the VA at that point talk to us, kill two 

birds with one stone? 

MR. ELLIOTT: Well, again, that's something 

to be considered as an approach, yes. But again, 

I would take it back to do you want the whole 

Board engaged, or do you just want the working 

group engaged? I think it could go different 

ways. And so all I'm asking is to think through 

this, and then place something in front of me 

that I can effect for you. 

DR. ZIEMER: Let's not -- let's hold that 

till tomorrow. 

Maybe -- Mark, maybe your group can address 

that question as well. 

Certainly we can't -- I shouldn't put it that 

way. We probably don't want the whole Advisory 

Board to be going to review the sample cases 

because this becomes an official meeting at that 

point, and this is something, because of the 

confidentiality of the files, we can’t really do 

in public. So that's got to be the smaller 

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82 

group. If the whole Board wishes to hear from 

the VA, then we can schedule that as part of a 

regular meeting. 

DR. NETON: I'd just like to offer one point, 

a minor correction. It really is the Defense 

Threat Reduction Agency that is responsible for 

conducting the dose reconstructions that is 

turned over to the Veterans Affairs, so it would 

be -- or their contractor. 

DR. ZIEMER: For the record, that's what we 

need, then. 

Okay, I think we're at a point where we're 

ready to take our morning break, so let's do that 

at this point. We'll reconvene at 10:45. 

(Whereupon, a break was taken at 10:20 a.m.) 

DR. ZIEMER: Okay, we're back in session. 

The next item on our agenda is Special 

Exposure Cohort petitioning. You recall that the 

Federal Register notice 42 CFR part 83 appeared 

just this past week, June 25th to be exact, the 

proposed rule. That rule is open for public 

comment actually till August 25th or -6th, a 60-

day period. Ted Katz is going to lead us through 

the document, then we'll have an opportunity to 

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83 

discuss. 

So Ted, if you would, please. 

MR. KATZ: Thank you. 

Okay, so I'm going to give an overview, a 

little bit of background. I realize the Board --

for the Board, this background's a bit redundant 

at this point, but there may be people in the 

audience who don't have your experience already 

with this. And then I'm going to talk about the 

rule. I'm not going to run through the rule in a 

section-by-section forum, which I think would 

drive you crazy at this point. And I realize the 

Board may want to later, actually, as they've 

done with the previous two rules, review the rule 

in that process. But I'm going to try to get 

some essential points up before you. So some 

background here about the cohort. 

Congress, in enacting, and the President, in 

enacting EEOICPA, established an initial cohort 

from four facilities, three gaseous diffusion 

plants and a nuclear test site in Amchitka, 

Alaska. And the Board has had a presentation 

about that process of establishing the initial 

cohort from Dr. David Michaels, who explained a 

little bit about the background and how that 

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84 

worked for Congress to make the decisions they 

made. But in addition, it was realized that the 

cohort may need expanding, and let me explain 

this. 

The cohort, for people who are in the Special 

Exposure Cohort, they are not required to have 

their doses reconstructed individually and to 

have a probability of causation determination to 

determine whether it's at least as likely as not 

that their radiation dose has caused their 

cancer. In their cases there is a presumptive 

finding that because they were employed at the 

sites and meet certain minimal criteria that are 

specified in EEOICPA and addressed in the DOL 

regulations, they will be compensated if they 

incur one of 22 specified cancers. 

And the one other point I should just make 

about this is they are compensated under the 

cohort provisions only for these 22 specified 

cancers. And as we discussed with the dose 

reconstruction rule and probability of causation 

rule in the past, some of these individuals, if 

they don't have one of these 22 specified 

cancers, they can seek a dose reconstruction from 

NIOSH, and we will attempt to do a dose 

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85 

reconstruction. This will be an important point 

as we go forward in talking about this rule. 

Adding to the cohort, I think I've covered 

this basically. Congress assigned this 

responsibility to the President, who delegated 

the responsibility for adding to the cohort to 

the Secretary of Health and Human Services. So 

that's where the buck stops. That's the person 

who makes the decision ultimately whether to add 

or to deny adding a class of employees to the 

cohort. 

Now Congress did give some broad statutory 

requirements to guide the President and Secretary 

of HHS as to how it was to go about this process 

of considering and adding classes to the cohort. 

Two criteria were identified: One, that it's not 

feasible to estimate radiation doses with 

sufficient accuracy; and the second criteria, 

reasonable likelihood that these radiation doses 

endangered the health of the class. 

And then there were also some specifications 

with respect to the process. One, that HHS was 

to consider petitions by classes of employees to 

be added to the Special Exposure Cohort. This is 

how we come to consider a class. And secondly, 

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86 

that after giving consideration to a petition as 

appropriate, we would get the advice of the Board 

on whether or not to add that class. And there's 

more -- it's worded more specifically in the Act, 

but this is the meaning. 

Congress also allowed itself, as it was said 

to me from a Congressional staffer, a sort of 

escape hatch, a Congressional review period. So 

for affirmative decisions, if the Secretary of 

HHS decides that a class should be added to the 

Special Exposure Cohort, that decision and its 

basis go to Congress, and Congress has 180 days 

to consider that decision. And I'll be more 

specific in how we interpret that. 

Now I've separated the presentation into two 

pieces, really. The front end, I want to talk 

about sort of the substantive work of evaluating 

whether a class should be added or not to the 

cohort. And then on the second half of this 

presentation I'll talk about then the process for 

doing those evaluations, for considering 

petitions and doing those evaluations. 

So key technical issues, these are what we 

just identified in the Act. They come from the 

Act. We need to be able to determine for a class 

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87 

when it's not feasible to estimate radiation 

doses with sufficient accuracy, and when is there 

a reasonable likelihood that the radiation 

endangered the health of members of the class. 

What I'm going to do now is just sort of drill 

down into these concepts as to how HHS has 

interpreted this. 

The sufficient accuracy first. There is, 

first of all, there was a discussion earlier 

about the difference between -- well, about 

accuracy. And I recognize there's a difference 

between accuracy and precision from a 

statistician's or a scientist's point of view, 

and you discussed some of the problems with 

dealing with the issue of accuracy. But I think 

in this case really the issue is precision, and 

there is no gold standard for precision. It's an 

entirely utilitarian concept. It depends what 

you're doing how precise you need to be. 

And our practical answer to this was we need 

to be able to estimate doses to enable the 

sufficient -- to enable fair adjudication of 

claims. This is our answer. And it sounds on 

the front of it, I think, a little bit circular. 

If we can do a dose reconstruction, what we're 

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saying, then they will be sufficiently accurate. 

And the reason we say that is because the way 

we've designed the dose reconstruction process is 

to first and foremost ensure the fair 

adjudication of claims. And what that means with 

respect to precision is that we'll either be able 

to estimate the doses with uncertainty properly, 

in which case we're all right. Or -- I'm sorry, 

I'm losing my place here. Let me move to the 

next three sub-questions here. 

Can we reasonably estimate -- this is what 

we've said before -- can we estimate the doses? 

It means can we do, give you essential estimate 

and a dose distribution around that? If not, can 

we reasonably estimate the upper limit of the 

dose? These next two provisions are if so, and 

if so is it below or above a compensable level? 

This is what we've talked about before. In some 

cases we may not be able to produce a proper dose 

estimate with uncertainty limits, but we can cap 

the dose estimate. We can give a worst case of 

what that dose might be. With very low doses, 

that would be sufficient to produce a dose 

reconstruction. We would be giving them, in 

effect, then a worst-case dose reconstruction 

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versus a dose estimate with uncertainty 

parameters. But nonetheless, fairness would be 

assured here, we believe. 

When is dose reconstruction infeasible? And 

this was discussed again with the dose 

reconstruction rule, I think. Substantially, 

again, it's a case-by-case determination only, 

and there are limitations just to really 

explicate that that could prevent a dose 

reconstruction, which we talked about in the dose 

reconstruction rule. 

Really these three parameters all, when we 

fall short on all three, we have a problem doing 

dose reconstruction. And that's lacking personal 

or area monitoring records for radiation exposure 

-- and here, just to clarify, I'm talking about 

not the fact that there are some personal 

exposure monitoring or area monitoring, but the 

issue is where are we lacking such records. And 

secondly, where we don't have sufficient 

information on the radiation source to estimate 

doses. And this goes hand-in-hand with the 

third, where we don't know enough about the work 

processes involving the radiation sources, or 

where they could result in a hazardous dose. And 

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here I'm talking about a compensable dose. And 

in effect if we can't get a handle on this, how 

high the dose might be, and we can't put 

uncertainty parameters on it, we can't do a dose 

reconstruction. 

I should mention, we've had a presentation 

for a small stakeholder group about this rule, 

and one of the issues that was raised in that 

meeting was this whole question of feasibility 

again. When is it feasible for NIOSH to do a 

dose reconstruction? And our response in that 

discussion with the stakeholders is really that 

feasibility is a knotty issue when it comes to 

regulations, when it comes to getting a specific 

standard in place. And it's a problem in other 

areas of public policy as well, and people 

probably in this group understand how it's a 

problem when it comes to OSHA law. Feasibility 

is a big issue there. It gets determined on a 

case-by-case basis. There's really no better --

it's like trying to define joy. It doesn't 

accommodate itself well to a regulatory process. 

But it is something to point out that we'll 

be addressing on a case-by-case basis, and an 

issue which then will be coming before the Board 

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under those circumstances. The Board will be 

reviewing dose reconstructions and seeing those 

instances where we're not. If you're stratifying 

across all sort of possibilities, you'll be 

looking at instances where we couldn't do a dose 

reconstruction. And when we are considering 

classes, of course, every time we consider a 

class for a Special Exposure Cohort you'll be 

looking at the logic behind our finding that we 

couldn't do a dose reconstruction. So there is a 

public process for reviewing that. 

The next term I'd like to define, “endangered 

the health.” That's very broad. HHS interpreted 

this to mean potentially caused a specified 

cancer. The reason we did that is because there 

is no benefit to being part of the Special 

Exposure Cohort for any other end point, health 

end point. Only if you have a specified cancer 

can you be compensated. 

And then “reasonable likelihood” is another 

term that has no standard definition, but we had 

a lot to work with, we thought, in terms of using 

this definition or defining this further. We 

have NIOSH-IREP, which is designed to address the 

whole issue of likelihood under EEOICPA. And we 

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92 

thought to the extent we can be consistent we 

should be consistent between claimant groups, so 

using NIOSH-IREP was the preferred approach. And 

again, similarly, the 99th percentile credibility 

limit that's being applied in using NIOSH-IREP 

for people who can have dose reconstructions, we 

wanted to apply it here. The big difference is -

- comes in the specifics of NIOSH-IREP, the 

variables that you use. Because as you all 

understand, in this case we're not talking about 

an individual, we're talking about a class. And 

that raises obviously a whole different situation 

with respect to the particulars that you put in 

NIOSH-IREP. 

And these are the variables where this is 

relevant. Cancer type/site; radiation type, 

doses and dose parameters; radiation source I 

should add to that, too; cancer latency; age at 

exposure and cancer diagnosis; other demographic 

variables; and smoking history, which is relevant 

only for lung cancer. For all these variables 

what the rule says is in effect what we'll do for 

a class, since we're not talking about an 

individual, is choose these parameters to give 

the benefit of the doubt to that class because in 

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93 

many cases, in most cases, perhaps, none of these 

parameters will be known. But the rule also says 

that where we do have a handle on the profile of 

the class, we'll be certainly attending to that 

profile in making these assignments. We're not 

going to make assignments that completely sort of 

disregard the actual facts of the class. 

Let me -- let me -- wait, I can't go back, 

can I? There's no going back. Maybe I'll leave 

this up here and talk about it instead of trying 

to change it, but let me -- I'm going to talk 

about two of those variables. If we need to go 

back and you want to look at the other variables, 

we can. The two variables I'm going to talk 

about is selecting the cancer type and latency, 

which are two clearly very important variables in 

what probability of causation you determine. And 

what the rule says is that we will -- and it 

depends on the radiation exposure -- we will 

choose the most radiogenic cancer, which means 

the cancer that's caused by the lowest dose, in 

effect, at the 50 percent level. We will use 

that as our parameter in NIOSH-IREP. 

And there's sort of a different situation you 

have when you're dealing with radiation exposures 

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94 

that are from internal dose versus external dose. 

If there's external dose, then leukemia is going 

to be the most radiogenic, in most cases, most 

radiogenic cancer. And the problem addressed in 

the rule in that situation is that leukemia can 

have, depending on the specifics, a phenomenally 

low dose threshold, one and a half rem, perhaps. 

And in that case you're basically saying 

everybody qualifies. At practically no radiation 

dose you would add the class to the cohort. 

And the problem with that is that there's a 

balance to be struck between individuals who may 

come forward in the class and the class as a 

whole. And we're having to make a judgment about 

what threshold is appropriate for the class as a 

whole. If it's an extremely rare cancer and you 

have 50 people who are part of that class, the 

chances are you'll have no leukemia cases in that 

class, or 100 or 200. And the problem is should 

that be then your measure if in all likelihood 

those people will be presenting solid tumors for 

which probability of causation is substantially 

higher? So we propose splitting the difference 

in these cases, splitting the difference, taking 

an average between what applies for leukemia, 

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95 

what radiation dose level would be the threshold, 

and the radiation dose level that would be the 

threshold for solid tissue tumors. 

And then it gets more complicated, as you 

see, because latency is a big issue, and latency 

works in opposite directions with respect to 

leukemia and solid tissue cancers. In other 

words, low latency -- if a cancer occurs very 

soon, with leukemia it's more likely that the 

leukemia's caused by radiation exposure; whereas 

with solid tissue tumor cancers, generally 

speaking, a much longer latency increases the 

probability that that cancer was caused by 

radiation exposure. 

So this is an issue for the Board to dig into 

if it supports the concept here of doing this, 

splitting the difference, is how do we go about 

addressing latency versus the cancer type? As 

you can see here -- and one thought that we would 

put forward is that we would be claimant-friendly 

to the extent that we lack information on the 

class in both directions, so we wouldn't be 

choosing the same latency for leukemia as we 

would for the solid tissue, solid tumor cancer. 

So we'd use, in other words, a low latency for 

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96 

leukemia, a long latency for the solid tissue 

cancer, and be averaging those doses. But this 

is something that certainly deserves discussion 

by the Board. 

Now where we have clear specifics on the 

class -- it was a very small class, we know all 

the individuals, we know when they incurred 

cancer and so on -- then we would abide by the 

facts that describe the class. 

Now I'm going to move from then substantive 

issues to the process we'll go through, what 

we're proposing to go through for evaluating 

claims. And these are our goals: To establish 

an evaluation process that is public, thorough, 

and fair -- underline thorough; achieve timely 

consideration of petitions -- you'll see why this 

is an important issue; and invite maximum 

petitioner involvement -- just as under the dose 

reconstruction, we try to involve claimants to 

the maximum extent possible. 

Who can petition? The Act requires that 

classes of employees petition, so we've 

interpreted this as broadly as we saw appropriate 

to mean covered employees and/or their survivors, 

as well as unions representing or having 

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97 

represented employees, since in some cases it may 

be past tense for the unions. But they would all 

be qualified to petition. 

And the basis for the petition: There really 

are sort of two tracks, in a sense, for 

petitioning. And the one is one that this Board 

understands, I think, already. It's the case 

where we've already attempted to do a dose 

reconstruction and were unsuccessful, found there 

are not sufficient records to do a dose 

reconstruction. And in that situation, in effect 

the petitioner would have to do no more. The 

petitioner would bring that to us, that finding 

to us, and at that point we would go on with 

defining the class initially and evaluating the 

two criteria that we just discussed as to -- and 

the first criteria is, of course, met for the 

individual already, and the question is is how 

many other individuals are in that petitioner's 

shoes in terms of it not being feasible to do a 

dose reconstruction? 

Now if there hasn't been a dose 

reconstruction attempted for anyone in the class, 

then we require substantial grounds on behalf of 

the petitioner for believing that the class may 

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98 

have met the requirements of being added to the 

cohort. And let me just say we're not requiring 

for them to do our evaluation for us, which I'll 

get into, our evaluation of those two factors, 

but simply to show that they've made a 

substantial effort to determine whether or not --

within their means to determine whether or not 

dose reconstruction is an unlikely possibility 

for them. 

And if you want me to run through those, 

they're written out in the rule, but in effect 

we're asking them to define who is the class 

they're talking about initially. And that's an 

initial definition, which will be addressed and 

possibly changed as we go through the evaluation 

process, and I'll get back to that later. We're 

also asking them to determine what records are 

available, if there are records available 

concerning exposures they believe there are 

uncovered by DOE records, and for us to show some 

reason to believe that they were exposed to 

radiation. So it's fairly minimal, I think, and 

we will be providing them with a petition form 

that draws out as much information that could be 

useful to us as possible, and we'll be working 

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99 

with them then, as they may have problems in 

responding to that form, to help them complete 

that form. 

The next step is that there'll be an 

evaluation made by HHS as to whether or not they 

meet the basic criteria for having their petition 

evaluated, and they'll be informed of that. The 

next point, if they don't, the question is is 

what recourse do they have. And all of these 

petitions that HHS is considering evaluating will 

come before this Board with -- and where we have 

made a recommendation, HHS has made a 

recommendation that there's not a basis for 

considering this petition, the Board will have a 

chance to review that recommended finding and 

dispute it, dig into it more, whatever. But HHS 

will not make final decisions until this Board 

has had a chance to consider those decisions. 

Now what happens once we've selected a 

petition to evaluate? NIOSH will evaluate the 

petition and report the results to the 

petitioners. We will be evaluating the two 

factors that I discussed, the substantive key 

technical issues. So the burden will be on NIOSH 

to go to DOE, to go to AWEs, to go to the other 

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resources that are available to it, including the 

petitioners, of course, to dig up as much as 

possible information to make these decisions. 

It will then report to the Board. It will 

report, providing its initial definition of the 

class based on that evaluation. The class may be 

different at that point, having evaluated it, 

than the class was proposed. For example, a 

class may have been proposed that in fact 

represents several classes with different 

circumstances, different exposure experiences, 

different record availability, and so on. If 

that's the case, at that point NIOSH will be 

recommending in fact there are two classes here 

for which decisions need to be made, and those 

will receive separate decisions. On the other 

hand, NIOSH could receive several petitions that 

in fact should all be bundled into one because 

they really represent the same class of workers. 

In any event, we'll produce this report that 

will define the class or classes, and it will 

address the substantive issues that I've 

discussed before and provide the basis for a 

recommendation. The petitioner at that point --

this will be presented to the Board, and the 

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101 

petitioner will have an opportunity to come 

before the Board and make a case if the 

petitioner disagrees with the NIOSH evaluation, 

and the Board will have an opportunity to advise 

NIOSH on whether it needs to do further work in 

evaluating the petition. After this process with 

the Board, HHS will recommend a decision and the 

basis to the petitioners, who may contest that. 

That's a contestable decision, and there will be 

an administrative review when there are contests. 

After those contests they have 30 days to bring 

contests in those cases. 

After that's resolved, HHS will publish and 

report final decisions. Now that's sort of a 

different -- a staggered approach here. Denials 

of petitions we will publish in the Federal 

Register and report immediately. We will report 

all decisions immediately, but if HHS has made an 

affirmative decision we actually will report our 

decision and its basis to Congress first, as I 

mentioned earlier, and Congress has 180 days to 

act on that decision. And HHS interprets that 

role of Congress as to either expedite the 

decision -- Congress would have to pass a law to 

do anything, we believe, but to say that the 

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102 

class, instead of waiting 180 days, will be 

effective at whatever point, immediately. Or 

vice versa, Congress could decide that it's going 

to in effect deny the petition after HHS has 

affirmed it, that it will not become effective, 

reject it. 

And this is just to make clear the point I 

made earlier, that whatever the class definition 

is going into this process, at the end of the 

evaluation process the class definition may 

differ, and you may have more than one class 

you're actually talking about, or less than 

several classes you're talking about in the 

output here. 

And then finally, there's a provision in the 

rule to cancel a cohort addition. And this 

relates to the sort of basic premise there isn't 

sufficient information to do dose 

reconstructions. There've been some experiences 

in the history of DOE where information comes to 

light, no one knew, no one was aware of, comes to 

light, it provides sufficient information to 

estimate doses. So in that case, if we received 

information and were able to, at that point HHS 

would cancel, after a due process of evaluating 

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103 

that new information, which again would come 

before the Board and so on in the same sort of 

process that a petition comes before the Board, 

but HHS could decide ultimately to cancel a class 

at that point. 

And that, I believe, concludes my slide 

presentation. 

DR. ZIEMER: Okay, thank you, Ted. 

Let's open the floor for discussion. Now let 

me pose a question here to kick this off. Is it 

my understanding that this requirement of sort of 

canceling a cohort would only apply to ones that 

had been added sort of from this point on? It 

would not apply to those original four? 

MR. KATZ: No, there's no authority to 

address the cohorts that were established by the 

law. 

DR. ZIEMER: By the law itself. 

MR. KATZ: Right. 

DR. ZIEMER: Thank you. 

MR. KATZ: That's correct. 

DR. ZIEMER: Let's ask for other questions. 

Okay, Roy. 

DR. DEHART: If I or a group had had their 

estimate of exposure reviewed by individual 

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104 

submission, you deny it, I come back then and 

petition as a special cohort, which I expect 

would be common. Is that correct, I could do 

that? 

MR. KATZ: You could -- you could come back 

DR. DEHART: Saying that you didn't really 

have sufficient data of my exposure? 

MR. KATZ: Let me clarify, though. There's 

nothing barring you from petitioning. The issue 

is that you will have already, I assume, then 

appealed your dose reconstruction since you 

differ with its results or its feasibility, in 

effect, what you're saying. You will already 

have appealed that to the Department of Labor, 

and if there were substantial grounds we would 

have already reconsidered that dose 

reconstruction under the dose reconstruction 

rule. Those provisions are provided. 

So you're saying after you've done all that 

and then you're denied, your claim is still 

denied by DOL, then you would come back and 

petition, and yes, you could. But lacking --

unless you can provide information that wasn't 

provided before to make your case, it seems like 

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105 

that would be an open-and-shut case, in effect. 

We've done your dose reconstruction. We can do 

it. And if you provide no reason for us to 

believe that information wasn't available, then -

-

DR. DEHART: If I read the Federal Record 

(sic) correctly, there was a statement that a 

petitioner's statement now becomes a matter of 

fact, which it would not have been earlier. 

MR. KATZ: I'm not following you. I'm not 

following you. 

DR. DEHART: If I had said I had been exposed 

to a situation where I'm stating I had 15 R 

exposure, you could not validate that earlier on 

in the process so that there's no evidence that I 

had sufficient exposure to qualify. Now I could 

come back as a petitioner under this system, and 

as I read this the implication was if I simply 

state that I had had an exposure, that becomes 

sufficient evidence for consideration. 

MR. KATZ: Well, there would have to be 

records to support that. 

DR. DEHART: I wasn't sure that that was 

stated in the -- I'll see if I can find that 

specific statement. 

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106 

DR. ZIEMER: You're asking whether simply 

asserting that you were exposed is sufficient --

DR. DEHART: Yes. 

DR. ZIEMER: -- grounds. 

And Ted, as I understand it, there would have 

to be -- even if you couldn't reconstruct the 

dose there would have to be, for example, some 

evidence that there were sources around or 

something like that. 

MR. KATZ: We would have to, with certain 

specificity, identify what those sources were, 

what occurred, and so on. 

DR. DEHART: Yes, I understand that. 

MR. KATZ: And you're saying that someone 

could do that, then? 

DR. DEHART: Correct. 

MR. KATZ: And specify those, and they would 

make the first hurdle. And that's true, I think. 

DR. ZIEMER: Jim. 

DR. MELIUS: Ted and Larry have heard this 

already, at least parts of it, but my major 

concern about this approach is -- and it goes 

back to when we were doing the dose 

reconstruction rule also, and the guidelines for 

that -- is that we have not established any 

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107 

guidelines for when a dose reconstruction is not 

of sufficient quality to sort of pass muster, 

whatever you want to call that, and that there 

are no criteria for that that have been 

established nor any real guidelines. And if I 

remember correctly -- it goes back a couple of 

meetings -- I think Jim Neton said they were 

going to eventually develop some sort of 

guidelines or consideration. But we don't have 

those yet. We've based a whole rule on this sort 

of nebulous case-by-case approach that we will --

there'll be a determination that there's not 

sufficient information, whatever, in order to be 

able to do a quality dose reconstruction. 

However, at the same time we're saying that 

there ought to be enough information that we can 

do this reasonable likelihood dose reconstruction 

in order to make sure whether the class would 

fit. So it meets some criteria, but it doesn't 

meet the criteria for individual dose 

reconstruction. And I believe that without any 

sort of guidelines or parameters on this that 

we're getting into a very murky area. One could 

see situations, depending on who in the class 

applied, how we could come up with very different 

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108 

decisions that we really -- that the scientific 

quality of what's being done in terms of the dose 

reconstructions would be quite variable because 

we'd be at the edges of where there's adequate 

information to do that. 

I'm not sure that as we've talked about a 

review process by the Board that we've even set 

up a scheme that would capture those where a bad 

dose -- a poor quality dose reconstruction's been 

done for a person, how -- we're going to sort of 

pick those up randomly. And rather, as opposed 

to a situation where we -- because of the absence 

of criteria, we really don't know when the 

criteria is between a bad dose reconstruction --

where's the line between a bad dose 

reconstruction and an admission that there is not 

enough quality information to do a dose 

reconstruction? 

And then in between that we set up this third 

parameter, this reasonable likelihood calculation 

that's going to be done that somehow fits in 

between those two, and we're doing all of that 

without any really established criteria for doing 

that. It's all case-by-case basis. And I find 

that very troubling to this whole process, that 

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109 

until we've established some criteria for when 

there's not adequate information to do a quality 

dose reconstruction that this whole process 

becomes very arbitrary and very unfair to the 

applicants, and very hard to have it transparent 

for people on the outside to know what to do. 

Carry that over another step to the 

petitioning process: How do you know when you 

have -- when there's poor enough information that 

you would qualify under the petitioning process? 

And again, we've not established the criteria or 

the guidelines for doing that. I think that's a 

major hole in this whole process as it's being 

proposed here. 

DR. ZIEMER: Let me comment in part on that. 

It seems to me we have to be careful when we talk 

about sort of quality dose reconstruction. 

Actually, the methodology has built into it the 

issue of uncertainty. And so under the scheme 

that's proposed, you could do something that I 

might call a quality dose reconstruction that has 

a lot of uncertainty because there's uncertainty 

in the data, there's missing data, and there are 

provisions for handling this. 

So in fact, what someone might call a poor 

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quality -- in terms of getting the right number -

- I think we find out in many cases actually 

favors the claimant, because the uncertainty gets 

larger, and that almost in every case that I've 

looked at helps the claimant as the uncertainty 

gets larger. If there is dosimetry data 

available -- and you can say what you will about 

its quality, but presumably the quality of that 

gets reflected, in a sense, in that uncertainty 

information, which includes the calibration 

methods, the limits of detection, and all that 

sort of thing. 

It seems to me what you're talking about here 

is a case where there's virtually no dose 

information. You have some knowledge that there 

were certain kinds of sources around. And I can 

think of cases where if someone said I know that 

we had this ten microcurie carbon 14 source and 

nobody was wearing film badges, and therefore I'm 

going to make a claim, and a reasonable person 

could do a calculation and show that it doesn't 

matter what you did with that, there's no way 

you're going to get a dose above some value, even 

if you ate it all. So you can do those upper 

boundaries with no dosimetry and no monitoring 

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data and do that. 

So I think in principle you can do the things 

you're talking about. What turns out is that we 

don't know all those cases, and that makes us 

very leery. Do we really have the tools to 

address all these, and we haven't defined all the 

parameters. 

DR. MELIUS: That's my point, is that we 

haven't made -- defined the parameters --

DR. ZIEMER: And can you, without knowing 

what they are, can you do that in advance, yeah. 

DR. MELIUS: Well, I think you can. I think 

you can do some of it, and quality, I'm trying to 

use it in a broad sense because it includes 

availability of information. 

DR. ZIEMER: Right. 

DR. MELIUS: And the other issue that comes 

raised is feasibility. How feasible is it to go 

down and track down all -- how much time and 

effort will it take to track down and obtain all 

this information, and how do we judge the effort 

that NIOSH has made and that the people holding 

the records have made to --

DR. ZIEMER: Right. And I think that's where 

most of us have a little more apprehension. Do 

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we really have the information that we need --

DR. MELIUS: Yeah, and so --

DR. ZIEMER: -- to make the judgment. 

DR. MELIUS: Yeah. But somehow we're setting 

up this scheme that will do a -- say we can't do 

a dose reconstruction, yet we can do enough of a 

dose reconstruction to do this reasonable 

likelihood estimate; and then in other cases we 

can do a dose reconstruction. And where are the 

parameters that will determine how those do --

and I understand it's complicated and so forth, 

and we can say it's case-by-case. But I think 

there has to be some rules and some guidelines on 

how this is going to be -- both to make the 

program, as I say, work, and not arbitrarily make 

these decisions. 

MR. KATZ: Can I just respond a little bit to 

part of that? Part of that is there to the 

extent that it can be there, is the reasonable 

likelihood is -- it's fairly clearly stated how 

you would use NIOSH-IREP. And then in terms of 

how you make a determination as to whether 

radiation doses could have exceeded that 

threshold is, as it's discussed in the rule, is a 

subjective decision. It's a subjective judgment. 

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But it is a judgment that is made openly and 

presented to the Board, and considered by the 

Board as to whether it's reasonable to consider 

that these radiation sources could have caused 

such a high level and so on, given what's not 

known about the process and so on. 

So I think it's the best you can do in this 

circumstances of lack of information, is have a 

subjective decision that is open to scrutiny 

because there's no decision logic you could drive 

this by that would simply be a sort of factual 

open-and-shut case. Or that we have been unable 

to imagine it, is what I should say, and if the 

public presents with us a better solution for 

addressing this sort of murky area we will lunge 

at it, I'm sure. 

DR. ZIEMER: Henry. 

DR. ANDERSON: Yeah, I got kind of a -- two 

different issues. It seems to me that most of 

the focus of the rule is on people coming in via 

the filed claims mechanism, and I think that's 

where we're having some of this trouble, that we 

don't know -- you file a claim, where exactly 

will the claim -- what are the parameters that'll 

say we can't reconstruct it? And then based on 

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that lack of ability to reconstruct, will we be 

able to meet the likelihood issue? Because if 

you had the likelihood issue, your parameters 

would be such that you probably could estimate. 

So coming in through a claim, then to me the 

issue would be, okay, if you get that, then is 

this person a accurate reflection of the class of 

people? Because I could see -- at least I don't 

see anywhere that it says that to be a class, 

everybody in that class can't have their dose --

the ability to be reconstructed. So it seems to 

me you could begin to get a sense of some classes 

where some of the individuals are borderline and 

others would not be. And so it's one of a 

streamlining process coming in through that 

system. 

Now I could see -- my question is, so let's 

take a look at what would you anticipate as a 

hypothetical class that isn't currently a part of 

the system to not have to go through this? And 

then can we define those kind of people so that 

you now have a definition of a class, and then 

when somebody comes in you see whether they fit 

that class rather than having to go through the 

dose reconstruction. It would seem to me the 

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kind of -- and I'd ask, so what classes do you 

think are reasonably out there that might fit 

this kind of parameter? 

And it would seem to me you might have 

accidents or unanticipated events that were not 

monitored and measured that could have delivered 

a significant dose, so you could then define here 

are the kind of parameters that this class would 

fit. And your measurement would be not can they 

be dose-reconstructed, but -- as is now -- if you 

meet the class, you're in the class for the 

selected 22 cancers. And again, the averaging 

and all of this kind of thing, what I think you 

have to look at, what are the hypothetical 

classes out there? 

And it seems that's a process that's a little 

easier than -- to do than wait for an individual 

to then say, well, is this a sentinel event for a 

class, rather than trying to define those classes 

up front, and are there circumstances where you 

wouldn't expect there to have been anybody 

monitoring because you're into an emergency 

response kind of activity? Are there -- can 

NIOSH think of any classes, hypothetically, that 

might be out there? And it might be easier to 

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come at it from defining those classes, getting 

those petitions going before you've got a 

potential person coming in. Because to me then 

the process would be does the person meet the 

class, rather than can we reconstruct the dose 

for this person; and then secondarily, are they 

in a class? 

Now if they came in with a cancer that isn't 

part of the special cohort, then obviously you 

would go through the -- they could get 

compensated based on exposure. So to come in 

every time through we can't do your dose, so 

therefore you would then be looked at to see if 

you're part of the class, I would turn that 

around and say can we or are there things that we 

ought to be looking at, establishing those 

classes, before we have any claims filed of 

individuals. 

MR. KATZ: A just partial response to that. 

If we thought we could define the classes up 

front, we'd be in great shape. We don't think we 

can. And just to take an example you outlined, 

exposure incidents, special exposure incidents, 

in some cases there is monitoring and you do have 

records, and you can reconstruct the doses from 

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those incidents; and in other cases you can't. 

You can't -- there's no happy category, 

unfortunately, of class that stands on its own, 

which is why we're left with case-by-case. 

Now there are situations -- I think there are 

some situations we know about which we think hold 

real potential as classes, and Jim could talk 

about one of those if you want to hear an 

example. But it is a problem because we can't 

define the classes up front. 

DR. ANDERSON: See, I -- then what you're 

doing is you're now defining classes of one, is 

really what it is. As individuals file claims 

that can't be reconstructed, they then become a 

class of one because somebody else who meets the 

same parameters might well be able to be dosereconstructed. And that I see as the potential 

problem in the thing. 

MR. KATZ: Can I respond? 

DR. ANDERSON: Because you can't -- does 

everybody in the class have to not be able to 

have their doses reconstructed? 

MR. KATZ: And the answer, I think, to that 

is yes, because you can reconstruct a person's 

dose by their co-workers' experience if they have 

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118 

the same exposure experience. That's a standard 

approach in dose reconstruction to use. So in 

that case, where you have the same exposure 

conditions, the same circumstances, the coworkers' data would be good enough to reconstruct 

the dose for that individual. 

But as far as establishing classes of one, 

again, as you said, it's a sentinel there. We 

don't stop with the one individual who we 

couldn't reconstruct their dose. That's a 

starting point for us to determine how many 

others are in the same situation as that 

individual and thus should be added to that class 

definition, which is why I explained that the 

initial definition going forward from the 

petition isn't necessarily the definition that 

comes out the other end. 

DR. ANDERSON: A last question. The current 

special cohorts, are you saying that in those 

special cohorts nobody can have their dose 

reconstructed? 

MR. KATZ: Absolutely not. And actually it 

was very explicit in our dose reconstruction rule 

that we would be considering those cases when 

they don't have one of the 22 specified cancers, 

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because in their cases, if they can't have a dose 

reconstruction, they're out of luck. They have 

no remedy. So we will be attempting dose 

reconstructions, we're sure. I don't know if 

we've received any yet. I think we -- yes, we 

have; Larry's indicating we have. We've received 

requests for dose reconstructions from 

individuals who are part of that established 

Congressional Special Exposure Cohort. 

DR. ZIEMER: And keep in mind, those were 

identified by Congress --

MR. KATZ: Right. 

DR. ZIEMER: -- regardless of --

DR. ANDERSON: I know, but what I'm getting 

at is on a fairness issue one might want to look 

at is there going to be a same level -- can we 

use those groups as a comparison to say, okay, 

they were put in that way, we have some 

understanding of exposures there, and why they 

were considered. And then do we -- can we apply 

those kind -- use that to generate criteria for 

the other, or are we setting a different hurdle 

for the hypothetical group? 

DR. ZIEMER: My evaluation is that the law 

has already set a different hurdle the way it is 

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written. The fact of the matter is because there 

are people at other plants that say, why wasn't I 

included because what we do is similar to what 

they did or worse. So I'm not sure that fairness 

in itself is the criteria that's -- one can argue 

how is the law fair the way it's written. 

DR. MELIUS: Let me just understand another 

approach on this. If these are all classes of 

one, then aren't you really just saying -- one 

approach would be that if a person -- you can't 

reconstruct their dose. You would then do the 

reasonable likelihood calculation for them, and 

then if they pass that then they're --

UNIDENTIFIED: They're compensated. 

DR. MELIUS: -- they're compensated, if they 

have one of the appropriate cancers. And then 

they have to go through the process up through 

the Secretary, et cetera, et cetera. But it's --

we go through the different scenarios. That's 

going to be one scenario. 

Another scenario is how fine tuning do you 

get in terms of within what's the class? Because 

if you can't do it for person A, but person B who 

worked beside them, there was enough information 

but you didn't have that information at the time 

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you were doing person A, then you're going to 

have -- person B gets dose reconstructed, person 

A doesn't. Well, is person A and B, are they 

different classes, or how do you do that? It 

seems to me this gets awfully complicated. And 

again, my concern is either it takes an awfully 

long time to sort this all out, people aren't 

going to get compensated for many years, or it's 

going to become very arbitrary as to who within a 

group will get compensated and who won't. 

DR. ZIEMER: Ted has the answer to that. 

MR. KATZ: Just a partial answer there. 

Person A, we've done it, we've said we couldn't 

do a dose reconstruction and then we attempt to 

do Special Exposure Cohort, and now you're saying 

we look at person B and determine we can do a 

dose reconstruction. When we're doing the dose 

reconstructions, one of the things we'll be doing 

is looking at co-workers in the first place, 

because that would be an avenue for being able to 

do the dose reconstruction. So we'll have done a 

lot of work in determining, in effect, the 

parameters of the class when we attempted to do 

that individual dose reconstruction, which is 

part of the reason it'll be more efficient once 

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we have done that work to go forward. 

But if we were in circumstances -- I guess 

this is the other thing you might have been 

raising -- is as we go forward with the Special 

Exposure Cohort petition, we do a lot of work, 

something turns up and we find out we can do dose 

reconstructions for person A, who kicked this off 

in effect -- we told him we couldn't do a dose 

reconstruction -- at that point we would be going 

back and then doing a dose reconstruction for 

person A. Again, it's not about establishing 

classes of one. It's about, as Dr. Anderson 

said, they in effect work as sentinels for us to 

know we have a problem in a group of workers for 

whom there's a likelihood that they should be 

added to the Special Exposure Cohort. 

DR. MELIUS: I have one other related issue, 

and it goes back to our review process on these 

dose reconstructions. It would seem to me that 

if this approach were the approach that's 

followed, that people that can't have a dose 

reconstructed or close to not having their dose 

reconstructed become the ones we really become 

very concerned about. And that it behooves us to 

have a review process that captures many, if not 

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all, of those where there's real uncertainty or -

- I don't know what the right term, uncertainty 

isn't the right word here because it -- but say 

there's real difficulty, and the persons on a 

borderline between having their dose 

reconstructed and not, that it would behoove us 

as this Board to be very careful reviewing those 

because those are going to have some major 

implications in terms of decisions for that 

individual as well as for -- potentially for a 

large class of people where the information is 

marginal. 

And how are we going to have a process of --

are we going to be willing to first review all 

that number -- and again, at this point it's hard 

to tell what that number will be, but certainly a 

sizeable number of people out of the 5-, 10-, 

20,000, whatever claims are out there right now. 

And how do we have a system that identifies 

those, because it's going to be hard to identify 

without criteria set up or guidelines set up that 

will sort of guide this process in some way. 

DR. ZIEMER: I'd like to comment on that 

part, too, at this point. Just one of the 

concerns that I have as I read through the 

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proposed rule is the future role of this Board in 

terms of time commitments. I don't think we have 

a feel yet for numbers of cases. It looks like 

many of these could come before this Board, and 

we could be spending a lot of time as a Board 

adjudicating cases. 

Do we have any feel at this point for what 

this is going to look like? Let's say that a 

year from now that we have our other things in 

place and we're monitoring the dose 

reconstructions and so on, and some of this kicks 

in. Does anybody have a feel for what we're 

talking about here? It may be too early to even 

know, but this rule-making has a lot of 

involvement of this Board in the process, and --

DR. ANDERSON: And we don't know how many. 

DR. ZIEMER: Well, we can come back to this. 

But I don't know if the staff even -- do you have 

any sort of early thoughts on that, what that's 

going to mean? 

MR. KATZ: I'll be glad to address that, but 

it's not very helpful because it's entirely 

speculative. And in some respects the design of 

the ultimate final rule will have a bearing on 

how many petitions there are as well. But for 

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the purposes of this notice of proposed rulemaking, we estimated I believe around -- that 

there would be 90 petitions a year we would be, 

on average, addressing. And that was 

predominantly then petitions that are coming as a 

result of not being able to do complete dose 

reconstructions, and then others that are brought 

on initiative without that being a parameter. 

DR. ZIEMER: It might be helpful -- and take 

a number, say it's 90. You may be off one way or 

the other by a great deal. But if there were 90, 

for example, what are the implications of that in 

terms of sort of the caseload of this group? We 

need to think about that. 

MR. ELLIOTT: You're going to see every one 

of them. 

MR. KATZ: Yeah, the way this is written. 

DR. ANDERSON: At an hour apiece, that's a 

lot. 

MR. KATZ: And that's a requirement of the 

law that you see these. 

MR. ELLIOTT: Ted's certainly correct in his 

statement that until we see what the final rule 

looks like and what the process is stated to be 

in the final rule, it's hard for us to predict. 

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126 

It's speculative now. But perhaps this will 

inform, to a certain extent, your question. 

We have heard from various entities that they 

have an interest in filing a petition, an 

interest on behalf of construction workers, 

construction workers across the complex, 

construction workers at a given site; interest 

here in Rocky Flats, for what -- on behalf of 

what class, I'm not sure; interest in Los Alamos 

on behalf of the folks who worked in -- I forget 

the technical area, but the dump area. 

MR. ESPINOSA: Area G. 

MR. ELLIOTT: Area G, okay. Army ammunition 

plant at Iowa, there's a huge interest out there 

because of the complex situation where Department 

of Defense and Department of Energy shared space, 

et cetera. There's a large amount of confusion 

about, in that particular instance, about where 

we think we can do dose reconstruction and where 

they're not so sure we can. We have heard of 

interest in Oak Ridge. I believe that's pretty 

much the extent of the interest that's been 

expressed. 

Now what fruit comes from those expressed 

interests, I can't predict at this point in time. 

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127 

We’ll have to wait and see what the final rule 

looks like, what the process stipulates, before 

we can actually see how many petitions come 

forward. 

DR. ANDERSON: Just one thought that some of 

us had is, is it possible to go with an interim 

rule? Since we really don't have a good -- I 

mean, it's all speculative at this point and we 

can go ‘round and ‘round. But one way, when 

you're uncertain as to the workload here, would 

be to have this be an interim rule that sunsets 

or has to be finalized in three years, so we have 

some track record to take a look at it rather 

than having it be final, and then kind of the 

hurdle to have to go back to reopen it becomes 

much more difficult than it if it's --

MR. ELLIOTT: There's more -- I'll let Ted 

speak to this as well -- but there's more 

problems with going forward with an interim final 

rule where you can actually do work, as we did on 

the dose reconstruction rule. Because if we work 

on a petition, and let's say we come out with --

the Secretary makes a decision, and then once the 

rule becomes final and how it looks and what the 

process is established in the final rule, we may 

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128 

end up revisiting those petitions that were 

worked on in that process. So I think there's an 

interest within the Department and the 

Secretary's Office of this approach of a notice 

of proposed rule-making to get all of the --

thrash out the public comment and the interests 

and the concerns that are being identified. 

Ted, you want to add to that? 

MR. KATZ: Well, I just -- I’m sorry. I'm 

just trying to understand what Dr. Anderson's 

saying better. But are you talking about then 

the next step being -- we've made a notice of 

proposed rule-making, the next step being issuing 

an interim rule, interim final rule as opposed to 

a final rule? Is that what you were asking? 

DR. ANDERSON: Yeah, and then you have --

MR. KATZ: Yes. No, I understand. I 

understand. And that’s certainly a --

DR. ANDERSON: Because you may want to 

revisit them. The whole point of it is we don't 

have experience. It's all speculative at this 

point, so we don't know how many or whatever, how 

well this -- and if you get a lot of public 

comment that, gee, this is all very subjective, a 

way to approach that is, well, let's get some 

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experience. I'm just raising that as one --

DR. ZIEMER: Jim, you have another comment? 

DR. MELIUS: I have two points. I don't know 

when you're planning on announcing it, but in 

terms of public comment, I believe there is a 

plan for some stakeholders, additional 

stakeholder meetings? Is that --

MR. KATZ: Yes, that's correct. 

DR. MELIUS: Can you sort of tell us about 

those? 

MR. KATZ: Yeah. I can tell you --

DR. MELIUS: And then I have a follow-up 

question. 

MR. KATZ: I can tell you that the details 

aren't settled, but we are planning -- well, for 

good reason, the whole issue of doing stakeholder 

meetings just arose recently. But we are 

planning to have four meetings, local meetings at 

sites where we expect there would be people would 

have an interest in petitions. And we haven't 

settled the details as to which sites they would 

be. We've had a general discussion of that, and 

we've raised sites as possibilities. 

Larry, do you want me to run through those 

possibilities? 

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The possibilities that we're considering --

and we're open to input on these, most certainly 

-- are Hanford in Washington State, and Los 

Alamos area, and thirdly, the New 

York/Pennsylvania area. The Department of Labor 

did this in Buffalo because there are a lot of 

sites around Buffalo. So whether that is the 

right location exactly, there are a lot of AWEs 

in that area, which is the reason why that might 

be appealing, because they also may have lots of 

records problems. And the fourth site -- there 

were several discussed -- and I believe the 

Savannah River site was one that was discussed, 

because there are a lot of claims under the 

EEOICPA right now that are coming from Savannah 

River site. 

And the other one, Larry, is either Rocky 

Flats or Fernald, I believe? 

MR. ELLIOTT: We talked earlier about Oak 

Ridge. 

MR. KATZ: Oak Ridge, I'm sorry. 

DR. MELIUS: Your plan is to do these --

MR. KATZ: Our plan is to do these within 45 

days of the comment period, to include these 

within 45 days of the comment period, which means 

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131 

that in effect we would have to set these up to 

be able to do these at the end of July and the 

very beginning of August. Which is soon. 

DR. MELIUS: Anyway, the Board -- we should 

take that into consideration developing our 

comments. 

My question actually goes back to the last 

Board meeting. I believe at that time these were 

guidelines, not formalized rule-making procedure. 

It was going to be a set of policy or guidelines 

coming from the Secretary, and I believe you 

mentioned at that meeting that there was some 

differences of opinion, or you're trying to make 

up your mind to do that. But I was just 

wondering if someone could sort of tell us a 

little bit more about the difference, and 

particularly in relationship to Henry's question 

about interim rule, and do these need to be --

does this need to be done by rule-making as 

formal regulation? Why is that? What changed in 

the process that --

MR. KATZ: I'll be glad to address that to 

the extent I'm able. And if the HHS lawyers want 

to clarify they might, but I think I understand 

this well enough. 

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132 

This does not have to be done by rule-making, 

that is correct. The law, EEOICPA, does not 

require us to do this by rule-making. The 

problem lies in producing procedures that are 

binding on HHS. In effect, you end up producing 

something that walks and talks like a rule, and 

if it walks and talks like a rule there's legal 

history to support that it needs to be a rule, 

and that ends up being part of the issue. 

HHS intended to go down the guideline route 

as opposed to issuing a rule because -- precisely 

because of the issue that you're all wrestling 

with right now, because there's a whole lot of 

uncertainty about what's going to be coming in 

and how and so on. And all that uncertainty, I 

think, HHS wanted more flexibility to address 

that than they have when they issue a rule, which 

is binding. But in reality, the procedures we've 

produced walk and talk like a rule, and hence we 

needed to issue a rule. 

Now the difference between interim final rule 

and a final rule, in effect -- there's no 

difference in terms of the way they bind the 

Agency and so on. They're treated the same under 

the law. But the issue is simply you save a step 

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133 

when you issue an interim final rule if you're 

going to go about changing it down the road, 

because if you issue a final rule then you would 

after that have to issue a notice of proposed 

rule-making again before you go issue a change in 

that final rule. Whereas if you issue an interim 

final rule and have comments on that again, so 

that would be a second period of comments, then 

you could immediately afterwards, so long as you 

stayed within sort of the scope of what you asked 

for comments for and the information that was 

available to the public, you could then issue a 

final rule immediately without having to go 

through an extra step. 

I'm sorry this is long-winded, but --

DR. MELIUS: That’s helpful. The lawyers 

didn't jump up and down, so that’s a good sign. 

(Laughter) 

DR. ZIEMER: We're going to have more time 

after lunch to address this further, so I'm going 

to call for a recess here in just a moment. 

I do want to tell you that again we don't 

have group lunch or plans for a group lunch. 

There are many restaurants in this area. There's 

a list of --

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134 

Cori, where are you? 

MS. HOMER: I'm back here. 

DR. ZIEMER: Okay. You have copies of all 

these downtown Denver restaurants. I don't see 

addresses on this, but there are names and 

indication of whether they take big bucks or 

little bucks to eat there. I guess the concierge 

desk has information on how to get to some of 

these, but there's probably two dozen restaurants 

around here close by. 

Our experience has been that when we do go 

outside the hotel, which many may wish to do, 

it's a little hard to get served and back within 

an hour. So I'm going to suggest that we 

reconvene at 1:15; 1:15 will be our target for 

reconvening. And if the Chairman gets back from 

lunch by then, then we'll reconvene. 

Are there any other housekeeping 

announcements we need to make before we recess? 

MS. HOMER: I would suggest everybody take 

anything that's worth anything to you. Take it 

with you or lock it up, because the room cannot 

be secured while we're gone. 

DR. ZIEMER: And that means what, like 

laptops? 

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135 

MS. HOMER: Laptops. We can shut the doors 

and secure these downstairs, but I can’t 

guarantee anything. 

DR. ZIEMER: Thank you. 

(Whereupon, a lunch break was taken from 

11:57 a.m. until 1:25 p.m.) 

DR. ZIEMER: We're going to go ahead and 

reconvene. Tony didn't make it back yet, but 

there were some problems with the elevators --

well, I don't know if they were problems. There 

was some drill going on and some got stuck, but 

hopefully he'll be back shortly. 

We're going to continue with discussion on 42 

CFR 83. Let me ask first if there are any 

additional sort of general comments or questions 

that anyone has to direct to Ted or the staff 

based on the discussion this morning. 

(No responses) 

DR. ZIEMER: If there are none at this time, 

let me then suggest a couple of things. One of 

the items that we need to accomplish is to 

prepare some Board comments on this proposed 

rule-making. Unlike the previous rule-makings, 

this one does not pose specific questions that it 

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136 

asks people to comment on. You recall the other 

two rule-makings, there were some very specific 

questions they asked commenters to address. That 

is not the case here. So as we think about what 

form our comments might take, let me start by 

implanting some seeds of ideas. 

We might think about whether or not there are 

technical issues that we wish to address, 

technical or scientific issues. Are there 

procedural issues that we wish to address? Are 

there questions that we want to identify that we 

think should be answered, sort of parallel to the 

general questions that were asked of the other 

rule-making items? And then I would ask whether 

or not at some point this Board feels that it can 

make an overarching statement about the rulemaking, that if the following issues are 

addressed, then this rule-making would be 

considered to be, for example, acceptable or 

something like that. 

Now I don't want to lay out a format at this 

point as to how this ought to be or should be 

addressed. I think -- I want to be completely 

open on this. So let's think about whether or 

not we can identify issues that we think need to 

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137 

be addressed in some way or another, without 

doing any -- just identify sort of categorically 

what needs to be addressed in here in some way 

that would help with your comfort level. 

DR. ROESSLER: Before we get there, I don't 

seem to find that. Is that in the packet? 

DR. ZIEMER: This I downloaded from the web 

site. 

DR. ROESSLER: Ah. 

DR. ZIEMER: You have this in your packet in 

the form in which it was submitted to the -- oh, 

is it in there? 

UNIDENTIFIED: (Inaudible) 

DR. ZIEMER: Yeah, but it's in the 

typewritten form rather than the Federal Register 

form. 

DR. ROESSLER: I downloaded half of it and my 

printer quit. 

DR. ZIEMER: The nice thing about the Federal 

Register version is that rather than 64 pages 

it's more like -- yeah, not so many pages. But 

otherwise, as far as I know, it's the same stuff. 

So is anyone ready to start thinking about 

issues that we need to talk about? 

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138 

Jim, kick us off. 

DR. MELIUS: I think there are two general 

questions. They are somewhat related, but one is 

that this rule-making puts an emphasis -- the 

approach is the emphasis on individual dose 

reconstruction as a way of generating Special 

Exposure Cohort members, as opposed to an 

approach that relies on group petitions. And I 

think there's some pluses and minuses to those 

approaches, and to some extent they're 

complementary. But I think we ought to discuss 

is that the proper approach. 

The second issue, general issue, is one I 

raised earlier, is this whole issue of the lack 

of any definition or guidance on or parameters 

covering when can a dose not be reconstructed 

with sufficient quality, et cetera, for the 

purposes of this program. And I think that just 

raises a whole host of scientific and procedural 

issues within this rule-making, but should that 

be addressed, it would really change the whole 

approach. 

DR. ZIEMER: Thank you. 

Other -- let's just get items out on the 

floor here. 

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139 

Sally. 

MS. GADOLA: I have some questions as to some 

of their definitions and why things are stated 

the way they are stated. One of my particular 

ones was about ill effects -- not quoting it 

exactly -- but it just has to do with radiation 

and cancer, and at the beginning it also talks 

about silicosis and beryllium. And my direct 

question was some areas appear to have more cases 

of silicosis, and why are they not considered a 

special cohort? 

Which leads me back to another question that 

I think we should ask, is how did they determine 

special cohorts to start with? Why are certain 

people at K-25 with bladder cancer in a special 

cohort? 

DR. ZIEMER: Does anyone wish to actually 

answer that question, other than the fact that 

that's what Congress decided? 

MS. GADOLA: It helps us to establish new 

ones if we know how they did the old ones. 

DR. ZIEMER: Well --

MS. GADOLA: I think NIOSH would be in the 

best position to determine if it was done by what 

I sort of suspect, is if you have a large 

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140 

percentage of workers that worked in a particular 

area that developed a particular type of cancer. 

So if you're getting a lot of claims for a 

certain type of cancer from a certain area or 

during a certain time period, then that would 

indicate that there's definitely a problem there. 

And it would seem that that might be one of the 

criteria to say this should be a special cohort. 

Any comments? 

DR. ZIEMER: Maybe the staff can help on 

this, but it's my understanding that the way the 

law is written now, if you can do dose 

reconstruction on those that would preclude the 

special cohort. 

Is that correct? 

UNIDENTIFIED: Yes. 

DR. ZIEMER: Yes. Even -- right. 

MS. GADOLA: But if you get a bunch of claims 

and you can't prove it, you can't reconstruct the 

dosage but you're still getting a lot of claims 

from that area for that type of cancer, then it 

would give you a clue that something happened 

there. 

That brings up another question that I have 

on this specific rule because it states who can 

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141 

bring this to our attention, and one of the 

groups that was recognized was the unions. And I 

was wondering if there were not other groups that 

should be included. And I was trying to think, 

well, who might these other groups be? And I 

thought perhaps health care providers might 

notice that they had a certain type of high rate 

of cancer from workers in a particular area that 

worked at a particular plant during a certain 

time. 

MR. PRESLEY: We have retiree organizations, 

too, that ought to be able to come out and -- but 

I have a question --

DR. ZIEMER: Before you ask your question, is 

there anything that would exclude the other 

groups? This doesn't preclude other groups, does 

it? 

MR. KATZ: From petitioning? 

DR. ZIEMER: Yeah. 

MR. KATZ: I'm sorry, it's Ted Katz. Yes, it 

does. The rule limits petitions to be submitted 

by either employees, survivors of employees, or 

unions. It does preclude other groups from 

submitting the petition. But it does discuss 

this to some extent in saying that because the 

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142 

petitions are supposed to be by employees, and 

that's what we're trying to define, but it does 

go on to express that there are other parties 

that may have expertise in those cases. They 

need to get together with people who might be 

petitioners and simply assist them in 

petitioning, but they would not be the name on 

the petition in effect. 

DR. ZIEMER: They could not petition on 

behalf of an employee group since they don't 

represent them per se, is what you're saying? 

Other than the union groups? 

MR. KATZ: That is what I'm saying. 

DR. DEHART: But could they not then get the 

signature of a single employee --

MR. KATZ: Yes. 

DR. DEHART: -- and serve then as an expert 

in that individual's --

MR. KATZ: Yes. And that's mentioned in the 

preamble, is that that may arise, that sort of 

situation. 

DR. ZIEMER: Henry. 

DR. ANDERSON: I guess one thing that we 

don't have is what the petition form and 

application will look like. And my question 

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143 

would be is, depending on what that form looks 

like, it may be unreasonable to expect that an 

individual would have the wherewithal to complete 

that form. 

So we're basically setting up a system 

whereby somebody has their individual case 

reviewed, and now they're sent back saying we 

can't reconstruct your dose; you may want to 

consider filing a petition for special cohort 

status. And is it reasonable that a next of kin 

or an individual would in fact have the hurdle 

low enough that they could in fact do that? Or 

would it be better in the rule to say you may be 

eligible, you should contact -- or set up some 

kind of a system for that person to be more of an 

active participant -- or passive participant than 

active? 

It just seems to me it may -- it's tough 

enough for people to deal with the exposure 

issues of themselves. And until we know what's 

in that form, it may be totally unrealistic to 

send somebody something they can't possibly do, 

or they would have to hire and spend considerable 

money to hire somebody to do it on their behalf. 

DR. ZIEMER: The content of the petition is 

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144 

set forth --

DR. ANDERSON: Is it? 

DR. ZIEMER: -- in 83.9. 

But Ted, perhaps you --

MR. KATZ: I just was going to -- that's 

true. It's sort of the -- the framework is laid 

out there. The petitioner form will be more 

useful than that framework for petitioners. But 

in the case that you were mentioning of someone 

for whom we haven't been able to do dose 

reconstruction, a survivor, they basically don't 

have to -- there is no hurdle for them, other 

than giving sort of identifying information and 

the finding that we couldn't do a dose 

reconstruction. There is no other burden on them 

in terms of making the petition go forward to be 

accepted by HHS for evaluation. 

DR. ANDERSON: Okay, because I thought the --

it would go forward, and then what would be your 

evaluation? If all they have to do is turn 

around and say here's why I think it may be, what 

does your evaluation do but rely on what they 

submit, I guess, is the question. 

MR. KATZ: So our evaluation fleshes out how 

many other employees fit their circumstances and 

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145 

would comprise the class that they represent, 

that being a class of individuals for whom, in 

the first place, dose reconstructions can't be 

done. So that would be the first step. And the 

second issue is whether they incurred a dose that 

could cause specified cancers. But this is all 

done by NIOSH, not by the petitioner. 

DR. ANDERSON: So if you then went back 

through the list that's been reviewed and found 

somebody who you could do a dose reconstruction 

on, say it's somebody with a prostate cancer, and 

then their claim is denied, how would that go 

into the class --

MR. KATZ: In this case we just found that we 

couldn't do a dose reconstruction for the 

individual, so we would have -- again, we would 

have looked at co-workers of this individual as 

well. 

DR. ANDERSON: So you may be looking at 

classes --

MR. KATZ: In making that original 

determination that we can't do a dose 

reconstruction, one of the avenues that you will 

search when you do that is if we don't have data 

to reconstruct the dose for this individual, do 

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146 

we have it to reconstruct it for other 

individuals who were similarly exposed? So --

DR. ANDERSON: So you would have determined 

-- I guess my concern, I don't see how you get to 

a class if you've done it on -- if you look to 

see does this person belong to a class --

everybody's going to belong to some kind of a 

class. So you're going to say, okay, how -- see 

what I'm saying? 

MR. KATZ: Our job is to define that class. 

When an individual is denied because we couldn't 

do a dose reconstruction, at that point we will 

have done considerable work looking at co-workers 

and so on and know a considerable amount about 

the situation, not just the individual's case. 

But we have to go on from there and define the 

parameters of that class beyond that individual 

as a first step, and that would be a class of 

individuals for whom dose reconstruction can't be 

done. And then there's the second question as to 

whether they were exposed at a level that would -

- that could cause specified cancers. 

MR. PRESLEY: I may open a can of worms --

Bob Presley. Can we, as a Board, look at a group 

of people and make a recommendation that they be 

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147 

added to the special cohort? 

MR. KATZ: Not under this rule, no. You 

can't independently, in other words, identify a 

class of employees. 

Let me just clarify, first of all. You are 

empowered to make recommendations to the 

Secretary of HHS on everything that's covered in 

your charter. But in terms of the procedures for 

the Special Exposure Cohort, under the proposal 

your recommendations come in after NIOSH has 

already done an initial evaluation of a petition. 

DR. ZIEMER: Tony. 

DR. ANDRADE: It seems like even after the 

presentation this morning, which I tried to 

parallel process as I was once again going 

through the Federal Register, the proposed 

legislation -- let's not forget that -- but even 

after that, I found myself very ill at ease with 

what has been written into the proposed 

legislation. It certainly did not have the 

clarity nor the specificity with which -- or 

which was included in your presentation. It does 

not say, for example, that one might be 

considered for a Special Exposure Cohort if there 

is new documentation, there is new information 

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148 

about an individual or a group of individuals 

brought to light. That should be in here. That 

should be clarified. That is the comment I have 

about what's in the Federal Register. 

Number two is that I find the table of using, 

say, leukemia versus solid tumor and then latent 

periods as a comparison for finding the lowest 

dose rather arbitrary, especially given a case in 

which perhaps a dose reconstruction couldn't be 

done because there was a huge uncertainty or 

perhaps not even any very good knowledge about 

doses involved at all. So I find that arbitrary, 

period. And it's very -- and it's disturbing, 

again, that we're not using science but rather 

something that's contrived to try to go forth 

with setting a level at which one would consider 

putting together a Special Exposure Cohort. 

I would say that I think the probability is 

going to be very small that we do run into 

situations in which we're going to have a group 

of workers that we just know so very little about 

that we're going to have to define one. However, 

let's say one does exist or a couple do exist. 

Then let's make this legislation very clear that 

one can go forth with a proposal, but there has 

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149 

to be a commonality of lack of data or lack of 

understanding of data for this group of people 

from, I would suppose, a site, a site where it 

would be most common that you would have a group 

of people for which -- that were doing some kind 

of work that no records were kept for, something 

happened along the way, and that reconstruction 

became an impossibility. It just has to be 

clearer in the proposed legislation as to what 

those trip points are going to be. 

I think you did a good job in your 

presentation. I think the Register should 

reflect it. 

DR. ZIEMER: Jim, just one moment. 

The question was raised earlier about what 

this Board can do with respect to special 

cohorts. The charter says: 

(Reading) upon request by the Secretary, 

advise the Secretary on whether there is a class 

of employees at any DOE facility who were exposed 

to radiation, but for whom it is not feasible to 

estimate the radiation dose or whether there is 

reasonable likelihood that such radiation doses 

may have endangered the health of members of the 

class. 

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150 

It does not appear to restrict the Board as 

to how they go about establishing that, whether 

it be through this proposed rule-making or 

outside the rule-making. I don't see, at least 

in the charter, that it necessarily restricts the 

Board on that issue. Just an observation. 

Jim, did you raise your hand? 

DR. MELIUS: Make sure we have on our list --

I think they both have been mentioned 

specifically, but in terms of specific parts of 

it -- that one of the issues we should discuss, 

and the Board may want to comment on, is how 

classes of employees will be determined for the 

purposes of the Special Exposure Cohort. And 

secondly, is this endangerment criteria that Tony 

was just really talking about, both that issue 

with the latency, type of tumor, et cetera, as 

well as the general approach for that. 

DR. ZIEMER: Others? 

Yes, Henry. 

DR. ANDERSON: Yeah, I want to just raise 

again the issue of how do we, if we want to, 

comment on should it be a rule, should it be an 

interim rule, should it be guidelines. And I 

think we heard that because it seemed to be or 

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151 

NIOSH felt it was prescriptive, it therefore made 

more sense than a rule. And what I've gathered 

is there's enough kind of uncertainty in how this 

will be applied that it would seem to me it may 

well fit better guidelines. 

If the idea is to hold the Agency accountable 

it seems to me there's enough uncertainty in how 

the process is going to be applied that it's 

going to be a best judgment, many situations 

defended with the justification behind it, that 

unlike the other, it -- I'm not sure it really is 

-- that we gain anything by having it be a rule 

versus the others. And I guess I'd like to hear 

more about why you feel this fits better with a 

rule than a guideline for how one approaches 

this, when it seems to me there's a fair amount 

of inner-decision logic rather than science in 

your process that you're proposing. 

MR. KATZ: Sure, let me -- this is Ted Katz 

again. Just to clarify, this was not NIOSH 

wanting to produce a rule versus guidelines. 

That's not what this is about. This is lawyers 

and the government looking at this and saying 

based on legal precedent this needs to be a rule. 

And I think you'll actually -- it wouldn't be a 

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good use of your time to be arguing that this 

should be guidelines instead of a rule, because 

it's being made on the basis of law and not on 

the basis of a preference, I should say. And as 

you know, HHS actually preferred to produce 

guidelines and found itself with difficulty, 

finding that in fact it needed to produce this as 

a rule. 

DR. MELIUS: Could we take maybe five minutes 

and have an HHS lawyer explain that to us? Since 

they're all the way here in Denver --

MR. KATZ: There's really no more for them to 

tell you than what I've told you, which is 

specifically that there is case precedent that 

when you have a certain degree of specificity in 

requirements, in effect, when you have 

requirements that are binding on an Agency, that 

in effect operates like a regulation, and hence 

is supposed to be a regulation, and in fact can 

result in then a challenge if it's not issued as 

a regulation. So it needs to be issued as a 

regulation, and just -- the lawyers from HHS 

looked at this issue. Lawyers from the Federal 

Register looked at this issue. This was a wellvetted issue that they came to this conclusion 

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on. 

DR. ZIEMER: Ted, is it also the case that by 

going through rule-making you also assure the 

public process that might otherwise be bypassed 

with a guideline, or not? 

MR. KATZ: Well, it's absolutely true. 

You're not bound by the Administrative Procedure 

Act if you don't produce a regulation. You're 

not bound by that. You don't have to have public 

notice and comment and so on. 

In reality, with our guidelines we were 

always planning to have public notice and 

comment, so we were almost -- we were doing 

almost all of what it would require to have a 

regulation anyway. And in a sense, this is a 

formality that it was decided that it would then 

be produced as a regulation instead of as 

voluntary guidelines. 

DR. ZIEMER: It would appear to me also that 

even though there's right now in our minds a 

great deal of uncertainty, in fact the Agency 

would like there to be more specificity so that 

we do know, going in, what the rules of 

engagement are for this approach. 

Tony, you have a comment? 

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DR. ANDRADE: Yeah, one more comment. Again, 

I truly believe that this is going to be used 

less often than not. But nevertheless, I had no 

objection to it being turned into or codified. 

However, I really believe that the criteria, 

the criteria or guidelines, if you will, that are 

entered into the Code itself have to be extremely 

clear. And I think that one of the criteria that 

I'm feeling is bothering us here is that -- or 

criteria that does not exist and is bothering us 

here -- is that we don't want this to be an 

automatic third step in the petitioning process. 

We want this to kick in if there are very clear 

guidelines: Lack of information, a group of 

individuals for whom that lack of information is 

common, perhaps site commonality, perhaps work of 

those individuals, et cetera, et cetera. 

I think that the proposed rule, as it is 

written, is incomplete. It leaves us with a bad 

flavor, and I just don't think it's anywhere near 

ready for finalization without, I think, some 

extensive mark-up that can come from this 

committee, from this Board. And I know that this 

Board is free to do so, at least to make 

recommendations. 

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DR. ZIEMER: Thank you. 

I have a question, and maybe, Ted, I'll 

direct it to you again. I notice that in Section 

83.14 it says as a matter of -- item (e): 

(Reading) As a matter of discretion, the 

Secretary may consider other factors or employ 

other procedures not set forth in this part when 

he deems necessary to do so to address the 

circumstances in a particular petition. 

It seems to me that that opens the door for 

almost anything to override what's already in the 

rest of the rule. Could you help me understand -

- and that same sort of thing is repeated near 

the very end. It's 83.16, item (3), 

recommendation by the Board to the Secretary as 

to whether or not Secretary should cancel or 

modify, and so on. It says any -- or it's 

actually number four: 

(Reading) Any additional procedure the 

Secretary may deem appropriate, as specified in 

the notification. 

I realize the Secretary needs some latitude 

and discretion in making the decision, but it 

looks like all kinds of other factors could be 

brought in. As a minimum I would think that we'd 

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have to say any other procedure that does not 

conflict with the established procedures, because 

otherwise you can override everything. I'm 

having a little trouble understanding the intent 

there. I know it's sort of a catch-all, if all 

else fails let the Secretary make the decision or 

something. But --

MR. KATZ: Well, in fact it is an open, vague 

opportunity for discussion on the part of the 

Secretary, and it is there because of not being -

- because of the situation we have, which is we 

have considerable -- I can't use the word 

uncertainty, but I don't know which term to use -

- about exactly how things will work down the 

road. And this was simply a parameter left in 

there for the Secretary in case there are 

situations we don't envision that require other 

procedures. 

Should such measures be taken, it certainly 

would be taken in full public view and with the 

involvement of the Board, but there's not more to 

explain about it. That's exactly what it is. 

It's an open door, and it was put there with the 

intention of having unknowns out there in terms 

of how this world is going to evolve in terms of 

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Special Exposure Cohort petitions, what those 

circumstances are going to be. 

DR. ZIEMER: Okay. Other comments? 

(No responses) 

DR. ZIEMER: I call attention to the fact 

that in the document probably the first almost 

half or more -- I didn't count up pages -- but 

the actual rule-making itself is probably less 

than half of the document. It's sort of -- for 

general purposes I'll call it the last half. I 

think it's a little less than that. The first 

section is really sort of background information 

and discussion of why they're doing the document 

and so on. The rule-making itself is the rest of 

this, this back half. 

And let me ask, because I've asked this 

specific question, are there specific things in 

the body of the rule itself that you would like 

clarified at the moment before we go any further? 

Do you have questions on the meaning or something 

like that? 

DR. ANDERSON: Paul? 

DR. ZIEMER: Yes, Henry. 

DR. ANDERSON: We can go through some of this 

now, but I'm just wondering, since there does 

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seem in this case to be some time and we haven't 

had a lot of time to review this, if there's 

going to be public meetings for additional input. 

It would seem to me before we finalize something 

it would be nice to hear what those other 

comments are. 

So I'm wondering if there is going to be 

these meetings, whether we might want to have a 

subgroup that might work along the lines that you 

were saying, to try to -- we could even break up 

into a workgroup tomorrow or something to try to 

start drafting something, that we could then come 

back together at our next meeting, hopefully 

either in conjunction with one of the public 

comment -- say the last comment session or right 

after that to finalize our comments, rather than 

draft comments, send them in now, and then 

potentially have other comments that we haven't 

thought of that workers would bring at the public 

meetings. 

So I don't know when our next meeting or what 

-- I would only want to do it here if it's 

impossible for us to get together for discussion 

of suggested comments. I think we've had a fair 

amount of uncertainty feeling here. Translating 

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that into specific language, I think, is somewhat 

difficult. 

DR. ZIEMER: Well, there basically are almost 

two month till the comment deadline. 

DR. ANDERSON: Yeah. 

DR. ZIEMER: I think the target that we heard 

was that these public things would be in the next 

six or seven weeks, the last one of which would 

occur maybe a couple of weeks before the August 

26th deadline. How --

DR. ANDERSON: But I'd like to hear what --

DR. ZIEMER: What is the process for 

compiling that information and promulgating it? 

Is that done in a sort of a timely fashion? In 

other words, how easily would it -- how easily 

could the Board have access to the Q and A stuff 

that comes out of that meeting, those meetings? 

MR. KATZ: So the public comments, I'm sure 

we will handle it as we did in the past. We will 

put those public comments in our docket. It's 

going to be open on the web, as it was with the 

other two rules, and you'll have access to those 

public comments, written comments that are 

submitted that way. 

In terms of the comments that are made at the 

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four town hall meetings, all those meetings will 

be recorded, and that material will all be put on 

the docket, too. And in the process going 

forward we will want the Board's recommendations 

before we -- obviously before we finish our work. 

But the process is to consider all those 

comments, address them all, and -- are you asking 

about our questions and answers in response to 

those, seeing those? Or are you asking for --

DR. ZIEMER: Well, as a minimum, what the 

questions are and the comments that are presented 

in the public meeting, I think is what Henry was 

referring to. 

DR. ANDERSON: Yeah, it gives us some 

additional input. We may say, well, that isn't 

relevant, but at least we will have had an 

opportunity to consider, though. 

We were the last commenters, I would say, on 

the first two rules. So now we have it fairly 

early on, we've got some time. Let's be near the 

end again so we can hear those. The written 

public comments, if they come in in time for us 

to look at them, fine. But their deadline's 

going to be the same as ours, so they may not 

come in in a timely fashion for us to read them; 

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where the town meetings, those you could be able 

to capture what the sense -- are they all over 

the map, are they different in different regions? 

And that might help us in then taking individual 

comments to focus them into a Board set of 

comments as well. 

That's my only suggestion, that if that could 

be done, that would seem to me to be -- at least 

to me it would be helpful to hear. I don't know 

enough about the nuances of a lot of this that 

I'm sure people who are out there in the field or 

workers are perhaps going to have a better handle 

on, and get a sense of how -- how many of these 

are there going to be? If it's 90, is it -- what 

that means for the Board. We'll get a better 

sense from the public comments, I think. Or 

maybe, I'm hoping. 

DR. ZIEMER: Ted, that 90 number, in your 

mind what did that represent? Ninety individuals 

or 90 groups? 

MR. KATZ: That was 90 petitions, but the 

vast majority being generated as a result of us 

not being able to complete dose reconstructions; 

so the vast majority being generated as a result 

of us not being able to do individual dose 

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reconstructions coming from individuals. 

DR. ZIEMER: But a number of those could 

commonly -- or be common to one site or location 

where --

MR. KATZ: That's possible, right. 

DR. ANDERSON: The difficulty is it will 

become much more robust as you get more and more 

submissions. The first person or the first ten 

people who you can't do their dose reconstruction 

and you look for are there others like them out 

there, you aren't going to know because there 

aren't any others that have been submitted that 

have been turned down yet or have not been 

reconstructed. So you're more then into more 

speculative -- well, there may be a lot of these 

people out there, but we don't know. 

And so it's kind of how robust does it have 

to be, or will you look at it and say, well, this 

one individual seems to have -- potentially meet 

some of your criteria, though you can't do the 

dose reconstruction. So you might -- would you 

see recommending certifying a single individual 

and then wait to see if there's others in the 

class that come up? I just have a hard time that 

as the -- when you first look there's nobody else 

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like them there, so would they possibly get 

turned down as a class because we can't identify 

a class? 

MR. KATZ: We don't think there will be -- we 

think that would be an extremely rare 

circumstance where there is an individual whose 

situation is unique, and hence would comprise a 

class alone. So we're really thinking with these 

individual dose reconstructions, again, that 

those are a sentinel for an entire class that has 

yet to be recognized. 

So it's not a matter of 90 individuals in 90 

separate classes, but really when the individuals 

come forward and we can't do a dose 

reconstruction, then it's a question of how many 

individuals are in the boat with them and 

defining that class. And it probably will, in 

effect, short-circuit the concern I think that 

you could have that, well, you'll get a lot of 

individual requests from one site, and you won't 

be able to do each of them; but once you fail on 

one, the word's going to go -- the person can 

petition, and then you'll start looking at who's 

in the boat with them. And if there are other 

individual dose reconstructions in the pipeline 

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you would still carry forward on them, but as 

soon as it became clear that they're part of that 

class you'd be cutting to the chase there and 

defining your class. 

DR. ANDERSON: If it's just when do you close 

it out -- the data will -- as you continue to 

review, some may come in, and --

MR. KATZ: Well, it's not reviewing on an 

individual basis. It's going back based on an 

individual not having a dose reconstruction. 

It's looking at the data that speaks to all the 

workers in that individual situation. So it's 

not sort of boundless, I think -- I'm not sure I 

understand you -- but it's not boundless at all. 

It's determining, well, how -- what's the scope 

of this class. 

DR. MELIUS: How much work -- what's the 

workload involved and timetable involved in 

looking at those 90 petitions? 

MR. KATZ: What's the workload involved in --

DR. MELIUS: How long is it going to take to 

complete the average evaluation for a class 

petition? 

MR. KATZ: I can't recall what we estimated 

in terms of hours of work to address one of those 

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petitions. 

DR. MELIUS: Or time, do you have no --

MR. KATZ: No, it wasn't -- we didn't have to 

address it in terms of a time line. We would 

have addressed it in terms of hours of work, but 

I don't -- I just don't recall. I couldn't tell 

you, off the top of my head, what sort of labor 

we had guessed at in terms of addressing one of 

those petitions. 

DR. DEHART: I've read an awfully lot in the 

last couple of weeks on this topic, and I may be 

confused as to where this sits, but wasn't a 

provision made for an individual who would not 

qualify as a claimant because there is no cancer, 

but would qualify to enter as a petitionary to 

this program because he may have cancer? 

MR. KATZ: That's exactly right, and that's 

why --

DR. DEHART: So that opens it up to every 

employee, basically, who has been an atomic 

worker? 

MR. KATZ: That's exactly right. It is not 

limited to -- you do not have to have incurred a 

cancer to petition to be part of the cohort. 

DR. ZIEMER: But you do have to have the 

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cancer to get the --

MR. KATZ: To get compensated. 

DR. ZIEMER: -- compensation, yes, 

eventually, right. 

DR. MELIUS: And if you don't -- if you don't 

have the cancer, you're not a claimant, you 

haven't been turned down, you have to meet a 

higher level of proof in your application. Your 

petition has to -- excuse me, your petition has 

to meet a higher degree of --

MR. KATZ: Really, to clarify, it's not a 

higher -- in a sense, the person who's had a dose 

reconstruction turned down has met a higher 

burden of proof, but -- and probably will have 

put more labor into it, being involved with us in 

the dose reconstructions, but in any event there 

are requirements. There is sort of a threshold 

of effort they have to put in to petition, that's 

true. 

DR. ZIEMER: Jim has a comment. 

DR. NETON: I just sense that there may be 

some confusion; maybe it's just me. But when the 

SEC petition is evaluated, we're evaluating not 

individual workers but a particular work 

activity. So you don't qualify like 20 

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individuals and say those 20 individuals are in 

this class. There's a particular work function 

that may have occurred. 

And I'm reluctant to give examples, but 

someone working in a facility changing out some 

kind of filtration mechanism or something, there 

was no monitoring but we recognize that that 

filtration mechanism had a large potential amount 

of some actinide material that is -- since 

there's no urinalysis, no TLD information, we 

can't put any estimate on that exposure at all, 

but we recognize that it is potentially 

sufficient to have caused cancer in that class of 

workers. 

But once that class is established, then 

anyone who did that particular function is 

eligible to apply for that class. And we would 

evaluate them at that time -- did they really 

work during the constraints of the time frame 

that we specified and at that particular 

facility, those type of criteria. So it's not 

really qualifying an individual. It's a group of 

-- a work function, essentially, or even a whole 

facility, as Tony had mentioned. 

MR. KATZ: I'm sorry, it's Ted again. But 

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just to clarify for the record, that evaluation, 

then, once the class is established, the 

Department of Labor is responsible for saying do 

you fit in this class. So they are the ones who 

make that judgment, not HHS. 

DR. ANDRADE: No, I don't think that there's 

any misunderstanding about that here around the 

table. As a matter of fact, if what you said was 

written into the Register, I think the point 

would be moot. We're looking for commonality to 

establish a cohort. We cannot do this for 

individuals. And that commonality can be just 

about any sort of thing. 

DR. NETON: I don't think that it's possible 

to define those particular job functions. I hope 

that's not what you're suggesting. 

DR. ZIEMER: No. No, no. 

DR. ANDRADE: No, I'm saying commonality. 

DR. NETON: Commonality. 

DR. ZIEMER: And that perhaps would go a long 

way to clarifying the intent here. 

UNIDENTIFIED: Exactly. 

DR. MELIUS: And I think if that were carried 

over to the question of the individual 

application, because it’s really going to be some 

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169 

of those same criteria, whatever we want to call 

them, that would apply to a group and define a 

class in terms of what information's available 

and so forth that would apply in an individual 

case, which is why you couldn't complete their 

dose reconstruction. And it would seem to me 

that if NIOSH is not capable or doesn't want to, 

whatever -- I don't understand -- come up with 

these criteria, that one of the recommendations 

that the Board should make is either those 

criteria be developed or that we develop some 

criteria ourselves as recommendations. In fact, 

I think in order to deal with the issue of 

reviewing dose reconstructions we're going to 

have to wrestle with that issue at some point 

anyway as a Board. 

DR. ZIEMER: Some of these individual ones, 

it appears -- and I think the word you used, Ted, 

was they're sort of sentinels -- they trigger you 

to begin thinking, is there this class of 

individuals for whom this person perhaps is a 

surrogate or a representative? And it may be 

that that point simply is not clearly stated 

here. 

DR. ANDERSON: I think what's more clear when 

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you say a specific activity, that's different 

when you say acting as a sentinel. To me, when 

you say sentinel, that's the whole person, and it 

would be his lifetime exposure and all as opposed 

to an incident, event, or a period of -- a threeyear period of time when everything was lost or 

whatever. I think that kind of detail probably 

needs to be in there. 

DR. ZIEMER: Possibly could be either. 

DR. ANDERSON: But rather than if you can't 

do a dose reconstruction, you're really saying 

the person's whole lifetime of employment you 

couldn't do a dose reconstruction, or are you 

just saying this component in your dose 

reconstruction we can't do? That, to me, isn't 

clear. It seemed to me that denial is to get 

back to the person, say we can't reconstruct your 

dose, not your dose in 1953 or your dose in 

February of '64. It's rather we can't do your 

dose reconstruction for your period of 

employment. And that, I think, is the confusion 

here. At least to me --

DR. ZIEMER: Well, maybe --

DR. ANDERSON: -- if you're maybe looking at 

a specific segment of time where you say we --

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171 

there's a critical period in your work history 

where we have no exposure information; therefore, 

we can't do a reconstruction. 

DR. ZIEMER: Could you clarify that, Ted, 

because it may very well be that you can 

reconstruct everything except what occurred with 

regard to a particular incident. 

Is that what you're – 

DR. ANDERSON: Yeah. 

MR. KATZ: We've talked about that. I talked 

about that in my presentation, too. It's 

absolutely true. We're not concerned with the 

periods when we can reconstruct the dose. We're 

concerned, in effect, with is there a period when 

you can't reconstruct a dose? That's sufficient. 

It doesn't have to -- they can have perfect 

records for three-quarters of their career. 

What's important is a period for which there 

aren't records or adequate records. So that's 

the issue. 

But I want to clarify also what Jim was 

saying with activity. Activity -- and you, then, 

in effect, Dr. Anderson, you started to rattle 

off the reason why we're saying we can't be more 

specific. Jim said that an activity, for 

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example, and he gave you this example. Well, 

that is just one example of a situation where 

you'd have basis for a cohort. But there are 

other situations, too. They could be in the same 

area doing completely different tasks, and have 

incurred radiation doses that can't be measured. 

So that's not it. That's just an example that 

Jim was giving of a circumstance. 

DR. ZIEMER: Wanda. 

MS. MUNN: Thank you. 

I'm wondering if we're kind of getting out in 

front of ourselves here and trying to do what 

many of our jobs have taught us to do, which is 

look at the minutiae instead of the big picture. 

Because I have a hard time seeing that there is 

likely to fall upon this Board any large amount 

of material that is not already covered in what's 

here, perhaps with some additional specifics, as 

Tony has indicated. 

But on page 50 there is -- of the material 

that we have here -- there is a table identifying 

what the petitioner needs to identify or not 

identify in terms of becoming a special cohort. 

And almost everything that I've heard talked 

about around this table involves some class or 

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some incident that is either specified or 

referred to here on this table. 

Further, anything that we would see would 

already have gone through this process, and as I 

read page 51, would come to us for review 

primarily of what the Secretary's decision was, 

not as to what the contents of the file were. Am 

I incorrect in that? I believe what I'm reading 

here is there's a very defined process. If the 

Secretary does not find that this petition meets 

the requirements, then and only then would this 

Board become involved. And the Board, as I read 

this, will have an opportunity to review the 

Secretary's recommendation as to why that finding 

was made. And really that's all we're being 

asked to do, I think. 

Am I incorrect, Ted? 

MR. KATZ: Yeah, you are. 

MS. MUNN: I'm wrong. Okay. 

MR. KATZ: I'm sorry. But there are two 

phases, in effect. 

There's the first phase, which is deciding 

whether HHS is going to evaluate the petition in 

full, and that's what I think you're talking 

about there. There the Board would only make 

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recommendations if we were saying -- HHS were 

saying this petition doesn't warrant being 

evaluated. In that case, it would come before 

you before it was decided not to evaluate that 

petition, and you would in effect be sort of a 

review element of that decision, and you would 

make recommendations to us as to whether or not 

we should in fact be evaluating that petition. 

So I think that's what you're addressing on those 

pages. 

But you are fully involved as a Board, once 

we evaluate a petition, in overseeing our 

evaluation and making recommendations to us with 

respect to our evaluation. 

DR. ZIEMER: Sally. 

MS. GADOLA: Ted, this sort of gets back to 

what I first was talking about, and I just wanted 

to ask you the question and it's to clarify it in 

my own mind. And I liked your illustration when 

you were talking about putting people in a boat. 

I am assuming that with the IREP that there is a 

way that you can capture some of this information 

that shows that you're not able to do the dose 

reconstruction, but there are some similarities 

that would put these employees in a boat. Are 

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there? 

MR. KATZ: Yes. This is -- again, this not 

IREP, but our task will be to lay out very 

clearly which individuals we can't do dose 

reconstruction for and why. So the parameters of 

the class -- in the case of doing a dose 

reconstruction you have to lay it out very 

clearly for that case, that dose reconstruction. 

When you go on to a Special Exposure Cohort 

petition, we're going to have to lay out very 

clearly what information exists, what doesn't, 

and why that prevents us from being able to do a 

dose reconstruction. And that would then come 

before you, that whole logic, the data behind it 

and so on, for your evaluation. 

MS. GADOLA: Thank you. I think that's why I 

was first saying I assumed that NIOSH would be 

the first ones to often recognize this group, 

which I would call a cohort rather than 

individuals, being able to say, well, I'm sure 

that this must have happened at work because I 

remember so-and-so, but I don't have -- I just 

wanted to hear you reiterate how that is possible 

to capture some of this data. 

And I think all of that helps us to clarify 

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whether or not there really are going to be 

individuals to put in the boat, because some 

people think, well, it'll just be a very, very 

few, and that might be true. But you need some 

type of data to go by and some type of standards 

to go by. And if you have two or three people at 

Oak Ridge and two people in Paducah and so forth, 

how are they going to know about each other? 

MR. KATZ: Well, let me just -- that's an 

important point to clarify. The petitioners have 

to be actually from the same facility to be in 

the same class, to be in a single class. So you 

can have separate classes that can have very 

similar circumstances at different facilities, 

but they would be separate petitions. 

MS. GADOLA: Okay. So one of the ways that 

they get in the boat is if they worked at the 

same site. What I was thinking was if they did -

- also if they did the same type of job at 

different sites, but that could vary what they 

were exposed to by a large amount of radiation 

dose. 

MR. KATZ: And as the Board was discussing 

earlier, I think Dr. Ziemer was saying that 

practices were fairly different at different 

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sites, too. So at one site you may have had good 

record-keeping, good information available, and 

another site not, too. 

MS. GADOLA: Okay. And that sort of goes 

back to my first comment, too, is about the way 

that the first cohorts were established by 

Congress was according to where they worked. It 

was site-specific. 

MR. KATZ: That's correct. 

MS. GADOLA: And that's something that we 

might be seeing in the future, that certain 

sites, certain departments may end up being a 

special cohort. 

MR. KATZ: Or parts of a site, not 

necessarily the whole site. 

MS. GADOLA: It also seems like that would 

simplify things a lot for everyone, once that was 

established. Thank you. 

DR. ZIEMER: Ted, does the -- maybe I missed 

that. I think that's a point that perhaps is 

worth stating somewhere -- maybe it is and I 

missed it -- that any special cohort will, as a 

starting point, have the commonality of sitespecificity. Is that correct? 

MR. KATZ: That's correct. 

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I 

DR. ZIEMER: Is that stated? 

MR. KATZ: It is stated. 

DR. ANDRADE: It's 83.5 in subsection (c). 

completely skipped over that myself. But that's 

what I mean about the clarity of the rule. If 

all of these --

DR. ZIEMER: I got it. I see it. 

DR. ANDRADE: If all of these criteria were 

listed up front somewhere, where everybody 

understood precisely what needed to get -- what 

had to be done in order to be considered for an 

SEC, I think this would be a much more valuable 

document. It seems to be scattered throughout. 

MS. MUNN: Maybe it would help to include the 

form, which I haven't pulled down and looked at. 

DR. ZIEMER: I'm sorry, could you -- I missed 

that, Wanda. What are you saying? 

MS. MUNN: I said it might even help to 

include the form, which is available on the home 

page, but I haven't pulled it down and looked at 

it -- the application form. 

DR. ZIEMER: No, I don't think it exists yet, 

does it? 

MR. KATZ: No, it doesn't exist yet. And 

that's written as it would be in a final rule, 

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179 

where it would be available. But it's not there 

yet. 

DR. ZIEMER: Incidentally, just as an aside, 

you'll notice in section 83.13 it talks about the 

consensus of this Board. And it has a footnote 

about that, so I think it's okay. 

DR. ANDERSON: And if we wanted to be sure. 

If one person supports it. 

DR. ZIEMER: No, we have -- it says it may --

it's --

DR. ANDERSON: Yeah, it does not require you 

DR. ZIEMER: Right. 

Okay, additional comments? 

Yeah, Mark. 

MR. GRIFFON: If we had a little time here, 

I'm just going on what Tony was talking about 

with the clear triggers. I completely agree. 

Part of my frustration with it was the lack of 

clear triggers. 

And we've had discussions with NIOSH, and I 

guess what I wanted to explore maybe, if we had a 

few minutes now, was what was your thought 

process in defining things like reasonable 

estimate? It's defined as you can complete a 

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dose reconstruction. And I know that you turned 

it back and said, well, if you have a better way 

to do this, fine, give us a proposal. And I 

agree. I don't know that I have the perfect 

answer right now. But I can think of some 

quantitative -- potential quantitative triggers 

to be used to assist in determining that 

reasonable estimate idea. And I'm just wondering 

if it might be helpful to the Board if we heard 

some of -- I'm sure you went through a lot of the 

same thoughts that we're going through, on how 

can we possibly quantify this, and was there 

other -- can you share some of that logic with 

us? 

MR. KATZ: Well, we went through the issue of 

-- because it was -- it's been mentioned before, 

the issue of whether it's a question of the size 

of the standard error, for example. Is that what 

you're referring to, in effect, as a way of 

clearly defining that? And the way we veered 

from there or felt that was really inappropriate 

is because the size of the standard error is not 

harming the claimant in this case, as Dr. Ziemer 

expressed over there when we were discussing this 

provision before. If increased standard error 

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means more benefit of the doubt to the claimant, 

in effect, we're not harming the claimant that 

way, then that doesn't seem to us a good measure 

in this circumstance, which is, I grant it, it's 

sort of unique to what we've set up here in terms 

of how we're doing dose reconstructions. But it 

fits, I think, more or less like a glove with 

what we've proposed for doing dose 

reconstructions and what we're doing now there. 

So again, our logic led us back to saying if 

we can do the dose reconstructions we are 

treating these claimants fairly. And our concern 

is about claimants who don't have this as a 

remedy, and those claimants are people for whom 

we can't do dose reconstructions. There's really 

-- there's no more logic to present to you than 

that, for whatever limits it has. 

DR. NETON: I think I could just add a couple 

of things to that. 

One thing I think is important is it's 

unbounded, reasonably unbounded at the upper end, 

where you can't necessarily put a handle on what 

the upper end of the dose of that cohort or that 

group or class of workers would be. Your other 

alternative would be to assign everyone some 

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182 

extremely large exposure, which in effect 

qualifies them as a Special Exposure Cohort to 

begin with. That's the only alternative, is to 

say I know it's less than a million rem, 

something crazy like that. 

And one could do that, but I think that's 

when you get into this reasonableness test. 

Well, that's probably not reasonable, but we 

don't really know. And that's part of that logic 

process, is this unbounded -- sufficiently high 

to have caused cancer, but unbounded at a very 

high end where you'd never be able to establish 

it with any certainty. All the other ones that 

we could do, we feel that we could bound it 

within some reasonable scientific certainty. 

There I go, use the word “reasonable” again. 

But it's hard -- I'd be interested to hear 

whatever quantitative numbers you might have. 

MR. GRIFFON: Well, yeah, I've been playing 

around with that, but it's not ready for sharing 

publicly yet. 

But I guess the other concern I have, really, 

is from the standpoint of the potential 

claimants, that if we don't have some clear 

triggers, then I think there might be the 

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183 

reaction that, oh, once again I just missed the 

hurdle; boy, surprise, surprise, my -- even on 

that maximum likelihood where you give them the 

worst case dose estimate, they may say, surprise, 

surprise, once again we missed the trigger for 

compensation. And I think that -- I guess I was 

just trying -- if there were clear triggers, 

clear triggers for you would be helpful, clear 

triggers for the Board when we reviewed things 

would be helpful, because we're going to have to 

put our opinion out on these things as well. And 

it would be helpful to the petitioners so they 

knew what they were up against, maybe. 

And like I said, I don't have any clear 

answer to that. I'm just kind of exploring that. 

And that's my concern on that side, is that we're 

going to get a potential backlash of people that 

really believe their records were destroyed and 

information wasn't correct, and they go through 

this process again and -- your worst case 

scenario, they just don't believe that it was 

really a worst case scenario. So I think the 

review process is good, but I think the triggers 

would be helpful for everybody involved, is all 

I'm saying. 

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184 

DR. ZIEMER: Mark, could you -- when you use 

the term “triggers” here, give me an example of a 

hypothetical trigger in your mind. What are you 

meaning by it? 

MR. GRIFFON: I guess part of what I was 

talking about is how do you determine for the 

reasonable estimate. And it could be tied -- I 

think it could be tied to the uncertainty 

combined with the mean in a way that's endcancer-specific, so that you look at your sigma 

values on either side and compare it against your 

IREP model and see what that does to probability 

of causation. And I don't know, maybe you've 

looked at this. I'm not saying -- that's just 

one notion of a --

DR. ZIEMER: Isn't that what you're doing, in 

essence? 

DR. NETON: -– dose reconstruction. 

DR. ZIEMER: You're doing a type of dose 

reconstruction in the absence of any data. 

You're saying this group might have gotten a dose 

this high, and that would --

DR. NETON: Right, that's exactly it. I 

don't want to get into too much --

MR. GRIFFON: Well, that's not quite how you 

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185 

do a dose reconstruction. But like I said, I'm 

not really ready to put a model out there, but a 

dose reconstruction, you put the whole 

distribution into your calculations. 

DR. NETON: Right. But these triggers are 

extremely -- if you run the IREP model, cancerspecific, age at exposure, it's specific to every 

individual, and I don't know that you could 

actually establish a single trigger value. It 

would not be possible, given the infinitely 

variable nature of the calculation, at least in 

my opinion. 

MR. KATZ: Can I just --

MR. GRIFFON: I was proposing that more for 

the other side, with the individual where you 

want to determine if you can do a reasonable 

estimate. If that estimate is reasonable, then -

- I'll leave it at that. 

MR. KATZ: Well, I was just going to point 

out, too, that if you're -- but then I think he 

just canceled my comment in a sentence. If 

you're not talking about Special Exposure Cohort 

procedures, but where you apply this whatever 

kind of arbitrary or whatever trigger like this, 

the result of that is if it results in your 

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186 

creating a class where you could have done dose 

reconstructions for those individuals, some of 

those individuals will have cancers that are not 

on the specified cancer list. And there you've 

basically taken away any remedy from them that --

MR. GRIFFON: I understand. I also think --

and another -- I'm sorry, Wanda. 

I think another definition that might play 

into this is -- and Ted did present on this a 

little today in the presentation -- was 

feasibility. And I think I disagree a little bit 

with Ted that the description, I think it can be 

defined to some extent, at least in terms of --

we threw around examples of, well, you can always 

reconstruct a dose, given enough time and effort 

and -- but I think part of that plays into 

feasibility. How much time, effort, et cetera is 

going to be involved for one small class, 

possibly, to define a source term if you have to 

go back and characterize a dump site, for 

instance? I think that might be unfeasible, as 

an example. Maybe it's not. But I think that's 

something that might be able to be defined to 

some extent based on time and allocation of 

resources. 

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187 

DR. ZIEMER: As a practical issue, if you 

have to spend $50 million to decide whether 25 

people are a special cohort. 

MR. GRIFFON: Yeah, right. 

DR. ZIEMER: Wanda has a comment. 

MS. MUNN: It's my observation that no matter 

what threshold of either dose or event is chosen, 

there will be people who didn't quite make that 

and who will continue to feel that they have been 

mistreated. I believe the only thing that people 

who are involved in this kind of activity can do 

is to do the best job they can based on the best 

science that's available to them, and not be 

swayed by the fact that there will be people who 

will be unhappy with whatever decision is made. 

You just have to use the best science that's 

available. 

DR. ZIEMER: Thank you. 

Okay, it's time for a break, unless there's 

-- does somebody have another comment? 

UNIDENTIFIED: I think yeah was the comment 

over there. 

(Laughter) 

DR. ZIEMER: Okay, let's take a 15-minute 

break. 

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188 

(Whereupon, a break was taken at 2:40 p.m.) 

DR. ZIEMER: Our agenda actually calls for us 

to go back to dose reconstruction review process, 

but I think we agreed this morning, with the 

input to the working group -- and that group is 

going to meet sometime tonight, or after this 

session --

MR. PRESLEY: After this meeting. 

DR. ZIEMER: So if it's agreeable, we'll defer 

discussion on dose reconstruction until tomorrow, 

then. 

Mark, where are you? Is that agreeable? I 

guess it is. Mark, if that's not agreeable, say 

so. 

(Mr. Griffon is not present.) 

DR. ZIEMER: So let's go back to Special 

Exposure Cohort. We were kind of catching our 

breaths there, but you've had a chance to mull 

over things further. Do we have any additional 

comments at this time? 

Oh, yeah, just a reminder to members of the 

public who wish to make comments to sign up. 

There are several already signed up, so we do 

have you on the schedule, at least three people 

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189 

I'm aware of. Okay. 

MS. HOMER: (inaudible) 

DR. ZIEMER: Now up to four? Okay. 

Okay, I've called for additional comments on 

the Special Exposure Cohort petitioning process, 

rule-making. 

(No responses) 

DR. ZIEMER: Do you feel like we've 

identified all the issues we need to address? 

There's a cross-section of them. 

Okay, Roy. 

DR. DEHART: You mentioned earlier the 

possibility of trying to have comments that could 

be placed on the docket for review. Is that 

still the intent, or as was suggested to let the 

course run its full outing and then put our 

comments in? 

DR. ZIEMER: Well, I think it's up to this 

Board, number one, what it wishes to say and when 

it wishes to say it, so I'm not certainly 

dictating that. The comment period closes August 

25th or so, doesn’t it? 

MR. ELLIOTT: Yes. 

DR. ZIEMER: And I think Henry suggested that 

we might wish to be made aware of the public 

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190 

comments on this before finalizing anything that 

we do. Not that we are -- we certainly aren't 

going to do the staff's job, which is to respond 

to the public comments, but we would use those 

mainly to see if there are other issues that we 

think we should also be addressing, something 

that might be triggered by public input. 

So Roy, and then Henry. Or Henry and then 

Roy. 

DR. ANDERSON: Yeah, I was only thinking that 

as far as clarifying language or recommendations 

that we could make, there may be comments where 

the public is confused or has some questions that 

in fact, in honing in on our own comments, we 

could help address some of those. 

DR. ZIEMER: Right. I would certainly 

suggest that we need to be pretty far along and 

maybe have a semi-final draft ready that we could 

say, okay, in light of the public comments, we 

might make some additional minor changes or 

massage it a bit. But we need to be ready to go 

by mid-August or so in any event. 

DR. ANDERSON: Right. 

MR. ELLIOTT: Just for clarity's sake, let me 

make sure everybody understands that when we 

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191 

receive public comment on this notice of proposed 

rule-making, as soon as we receive that it'll be 

entered into the docket and available on the web 

site. That's a fairly innovative, very new 

practice in rule-making. We're the first to have 

done it with the two rules we've already 

completed. It's been our experience, though --

and limited experience that it is -- that people 

wait till the last few days to provide their 

comments. And so I'd just caution you in that 

regard. 

Secondly, with regard to the stakeholder 

meetings that we're proposing to conduct, we're 

going to attempt to get a transcript of those and 

put that on the web site as soon as it's 

available from the court recorder. So that would 

be to your avail as well. 

DR. ANDERSON: It seems to me, though, that 

depending where you hold them it's likely to be 

that there'll be one Board member that actually 

may be in the town where your town meetings are 

being held, and we could maybe task that 

individual to go to the meeting to take some 

notes to give us that feedback. That was my only 

suggestion on it, is there may be something that 

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192 

would be helpful that would help us make our 

comments more --

DR. ZIEMER: There will be a transcript, but 

probably you --

DR. ANDERSON: Yeah, that may be too late. 

DR. ZIEMER: -- don't need the detailed 

transcript. You --

DR. ANDERSON: Yeah, and the published 

comments, I agree, I'm not --

DR. ZIEMER: You want more the flavor of the 

comments, and maybe a synopsis of what the issues 

were that were raised. 

DR. ANDERSON: Right, right. And if those 

are ones that we could address, that would be 

helpful to NIOSH to have us do that, and then 

they can reference that. 

DR. ZIEMER: Roy, did you have another 

comment? No. Gen. 

DR. ROESSLER: What is the next planned 

meeting of the Board? I'm assuming that this 

discussion centers about maybe a teleconference 

if we had to get back together and make some 

decisions? 

DR. ZIEMER: We don't actually have an 

additional meeting scheduled at this time. 

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193 

That's one of the items of business before we 

leave, is to talk about the time for the next 

meeting. But if necessary, we can always have a 

teleconference. Keep in mind, though --

teleconference, a telephone conference -- keep in 

mind, though, even that requires notice in the 

Federal Register, and it's not a minor matter. 

DR. ROESSLER: So how would -- whatever we 

develop today and tomorrow, how would we refine 

that before the end of the comment period? 

DR. ZIEMER: We would either have to have a 

telephone conference or a real, face-to-face 

meeting, yes. 

Tony. 

DR. ANDRADE: Paul, I think it would be in 

our best interests to try to, as you said, draft 

something in terms of recommendations for 

wordsmithing this proposed rule, perhaps adding 

some clarification -- clarification of 

philosophy, what it's intended to accomplish, the 

whole idea of commonality that people are looking 

for, those sorts of things -- sooner than later. 

And then we can address the issue of finalization 

-- that is via teleconference or another meeting 

-- later on. 

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194 

DR. ZIEMER: Yes, thank you. 

I'm glancing here at our schedule to see 

whether or not there will be time to actually do 

some of that while we are here. There is, 

tomorrow afternoon, a fair block of time that 

could be devoted to this. It would require 

probably some preliminary work between now and 

tomorrow by one or two people to organize and 

categorize the comments that we had, and to come 

up with a scheme for how to approach that. It 

would probably preclude the Mark Griffon 

subgroup, which has its own task before it. But 

if there were one or two others that would be 

willing to spend a little time maybe after 

dinner, I'd certainly be glad to participate if 

we had one or two others, just so we can sort of 

organize the comments. 

Any volunteers for that? Okay, Tony. Any 

others? Wanda. I've jotted down, I think, a 

good portion of them. Maybe you've made notes. 

Maybe we can -- you haven't made notes. Okay. 

Anyone want to replace Wanda on the committee? 

(Laughter) 

MS. MURRAY: Wanda, you can have my notes. 

DR. ZIEMER: No, no, no, you -- she has it 

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195 

all in her head. 

DR. ANDERSON: Where are you going to meet? 

Depending on how much --

DR. ZIEMER: Well, I don't know. Where would 

you like to meet? We can meet in my room, I 

think. It's -- I think I've got three chairs and 

a bed. Okay. Let's do that after dinner and do 

some preliminary -- sort of lay out a scheme that 

might help the committee work together tomorrow. 

But I don't want to preclude additional 

discussion on that right now, so again let me ask 

this question. Do you feel, with the 

clarifications you've heard today -- and I think 

some of you said, well, if that were said in the 

rule-making that would help, some of the things 

that were said -- and perhaps some -- I don't 

know, reformatting or reorganizing of some things 

that are in there to bring out certain points, 

and maybe some -- well, identifying those issues 

that need additional clarification, maybe that'll 

give us a start. And we can then work on that 

tomorrow and see where we end up, whether we are 

far enough along that we feel we'll be able to 

get a draft before mid-August. 

But I want to make sure that we've identified 

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196 

all the issues that people wish to raise. Not to 

say that you can't raise more later, but --

(No responses) 

DR. ZIEMER: Okay. I'm going to, if it's 

agreeable with our members of the public who were 

originally scheduled for 4:30, if they're all 

here, I'd like to ask them if they would be 

agreeable to beginning this part a little early. 

Richard Miller -- Rich, are you still here? 

MR. MILLER: Yeah. 

DR. ZIEMER: Robert Tabor? 

MR. TABOR: Here. 

DR. ZIEMER: Phillip -- Schofield, is it? 

UNIDENTIFIED: He stepped out. 

DR. ZIEMER: Okay. And Robert Bistline. 

DR. BISTLINE: Yes. 

DR. ZIEMER: Let's proceed, then. 

Richard, would you go first? And why don't 

you come up to the podium. There's a lavaliere 

mike there. You just need to snap it on. 

MR. MILLER: I promised Phil he could go ahead 

of me. I think he’s actually --

DR. ZIEMER: Do you prefer to have Phil go 

before you? 

MR. MILLER: Well, I would, but I -- just to 

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avoid redundancy, also. Maybe we can do that. 

Why don't we --

DR. ZIEMER: That's fine. No problem. 

Phil? 

MR. MILLER: Yeah, let's do that, and if he's 

not back in time I'll --

DR. ZIEMER: Oh, Phil's not in the room. 

Well, Robert Tabor, we'll let you go first. 

Is that all right? 

MR. TABOR: Yeah. You want me to speak here 

or up there? 

DR. ZIEMER: Go up there, that would be good. 

MR. TABOR: I don't know if I'm totally 

prepared for this, but since I've been here a few 

times and we all put our pants on the same way, 

except for the ladies, I guess I'm comfortable 

enough with talking to you. 

DR. ZIEMER: Robert, just for the record, 

tell who you're representing here. 

MR. TABOR: Okay. I'm Bob Tabor, Robert G. 

for the record, whatever you want to put down --

T-A-B-O-R. That's Tabor, like labor; a little 

pun there. 

There's some things that I'd like to 

basically discuss. Maybe I can categorize the 

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198 

issues. One is somewhat the issue of integrity. 

I've kind of picked up on this this morning, the 

integrity overall of the review process. I'd 

like to emphasize that I think a great deal of 

importance and attention needs to be paid to 

that. And let me give you an example. 

For years the site that I work at, the 

Fernald site, and the people that I guess would 

be -- I would call my constituency, the Fernald 

Atomic Trades and Labor Council and those workers 

at the site, I remember when we first come there 

there was comments made -- well, there's no way 

you can get injured out here or anything to worry 

about out here. The only way you can get hurt is 

if a piece of uranium dropped on your head, that 

was about it. And there was even comments to 

that nature that were made in certain testimony 

during the lawsuits. 

But obviously that's not the case in this 

industry, and it's not the case with the 

materials that we dealt with out there. But most 

of the people were, I think -- or at least 

myself, and I know a lot of folks that I could 

say this would be true of -- were told that there 

basically wasn't a whole lot of risk in this 

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199 

business, and that you didn't have to worry about 

exposure. Well, that didn't end up being the 

case, as later on litigation and various types of 

studies that were done by maybe individuals like 

Arjun Makhijani did some things for, I think, 

some of the case suits that were filed against 

the company that ran the operation out there at 

the DOE. And the same was true, I think, with 

some of the workers in that case suit. And the 

Till study, I think, showed evidence contrary to 

what we were told were the risks and the 

potential exposures at our site. 

And when you take that in consideration, 

maybe it indicates that our processes for 

accumulating the data could be -- I don't know if 

I want to say tainted -- but certainly sheds 

maybe some doubt on how we accumulated 

information and data for exposure information. 

And when you take that into consideration, and 

you look at the fact that -- I'm not a scientist, 

but a lot of these things like risks, you got a 

lot of statistics involved in projecting 

probabilities when it comes to exposure data. 

You're dealing with a lot of other ways that in 

my mind, in doing estimates, that really -- I 

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guess if I was some type of a legislative type of 

a person on top, I would look at this as being a 

very mushy type of business. And that's not 

saying anything against the scientists that do 

this, it's just -- I think it's the nature of 

things, that sometimes you can't be just really, 

really exact. 

So now we have this process for trying to 

make things right out here and do something for 

those who paid the price during the Cold War for 

our freedom and what have you, and we have the 

situation of how we're going to go about this. 

And obviously there's still some questions that 

are unanswered. And some of these things, I 

think, that the Board will be playing a very 

valuable role in because now we're talking about 

hiring, what, some subcontractors to assist in 

the processing of the information or processing 

of things that a small group of people are not 

going to be able to do by themselves at NIOSH. 

And I guess on a personal note I probably 

know some of those individuals that are going to 

be -- that these -- in these contractors that are 

looking at winning that bid. But on a note of 

integrity, I'm not so sure that as a labor 

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person, and I'm not so sure that other folks like 

me around the country in labor would say that 

maybe we trust any of those folks, because most 

of them -- that's my understanding currently --

we're still talking about people who are paid by 

the government. And you know what that story 

means. There's going to be still a lot of 

distrust there. So now we're back to this 

situation on integrity. 

If we're going to do right by these folks, I 

think that the processes really, really need to 

have a certain flavor integrity. And I think on 

that note, in my mind, that the role of this 

Advisory Board here is very, very important, that 

you people need to be in that process somehow. 

And I'm not getting necessarily the indication 

where there's some assurance that your role into 

the process of assuring that we can have that 

integrity across the board there. 

And I think also it reminds me of a 

conversation not too long ago about some of the 

things that went on out at -- let me see, was 

that --

Your site. Where are you from again? 

MR. ESPINOSA: Los Alamos. 

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MR. TABOR: Oh, Los Alamos. And some of the 

stuff out there, I think that it dealt with 

tritium. And there was a lot of question, as I 

believe, and I can't -- I'm no authority on that 

because I'm from Fernald. But you hear things 

elsewhere. But there was some issues concerning 

whether or not -- compliance issues relative to 

dealing with those materials and what have you. 

And I guess my point is not until certain 

people got involved, some folks like maybe Till 

and Arjun got involved in some of that, was there 

any confirmation as to whether you are in 

compliance or whether you aren't, and whether the 

public trusted what was said or what wasn't. And 

the integrity in these processes, as far as I'm 

concerned, is really going to be important. 

So the type of things that you've been 

talking about here today and the issues it seemed 

to like -- to allow to have a lot of black holes 

in this process. Those things really need to be 

looked at very, very thoroughly. When I listen 

to you I can understand what you're talking 

about, but it's very, very hard to, I guess I 

would say, reiterate or -- what that -- you know, 

what I mean by that. 

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203 

One of the other areas that I wanted to bring 

up was like our Fernald situation there and the 

Special Exposure Cohort issues, and some of this 

most recent proposed rule-making. Fernald was 

not included in those special cohort group. I 

don't know how they managed to get left out of 

that because when I look at the fact that, well, 

what did we do there? Well, let's see, we 

received Paducah's material and we dealt with the 

same thing they did down there, and we received 

material from Portsmouth and we dealt with the 

same thing that they had there. Even though 

maybe some of our processes might have been a 

little bit different than those, some of the 

things that you were exposed to be identically 

the same. 

And we'll have people there who are going to 

come up ill, come up with cancers, and by the 

nature of the Act they won't qualify there 

because it isn't this particular cancer or that 

particular cancer as defined in the Act. But if 

you look over at some of the things that would 

qualify individuals at Paducah or qualify folks 

at Portsmouth, they would certainly be comparable 

to. And yet I'm not certain how they would 

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204 

explore their cases. I guess through the 

petitioning of -- saying that we believe we 

qualify for a particular class. 

Things that come to my mind today as I was 

listening, I don't know if I can really explain, 

but we were talking a lot about -- somebody 

brought up this number, well, if we had 90 people 

and they didn't -- let's see, what was said --

they couldn't do a dose reconstruction on them, 

and we put them over here in this pool and a 

certain period of time went on, and eventually we 

would look and see if there was some kind of 

commonality or something there and maybe take a 

relook at those things later. I'm thinking, why 

wouldn't you want to take a look at it from a 

group perspective on the front end rather than 

look at it from an individual perspective on the 

back side and wait a long period of time? 

Because sometimes these long period of times, 

folks, people are dead by the time they would 

ever be able to get reconsidered or get 

considered for these claims. And that was one of 

the issues. 

I'm not sure that I believe that the proposed 

rule-making takes into consideration or doesn't 

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205 

have some black holes there that allow some 

things to slide in the cracks. And I did hear 

some discussion from the Board members here about 

some proposals that possibly would plug those 

holes, so I would encourage you folks to do what 

you can to maybe shore up the ship there. 

The last time I was here I brought up an 

issue concerning -- it was after a gentleman 

spoke from the National Cancer Institute, and 

still what comes to my mind -- and I would like 

to use the analogy of apples and oranges -- we 

may have bad data out here that we've accumulated 

over the years relative to exposures on people, 

and I just want to say data that we accumulated 

that we know applies to apples. And we say, 

well, I guess if this data applies to apples, I 

guess I can apply it to other fruit. But the 

truth of the matter is you can't apply what you 

know about apples to oranges. Simply because 

oranges are fruit doesn't mean you can apply it. 

And I'm still not convinced that the kind of 

data that we've accumulated from the atom bombs -

- Nagasaki, Hiroshima -- that the studies on the 

survivors, that that particular data really is 

applicable to what workers have been exposed to 

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206 

in the nuclear network, and I still have some 

questions about that. There are a lot of other 

worker studies out there. I don't know exactly 

whether -- how we're looking at those things or 

if we are looking at those things. But we 

certainly should assure ourselves that we need to 

compare apples to apples and oranges to oranges. 

There was one other thing that I had and I 

don't -- I'm trying to think here; I didn't get 

it jotted down. 

Well, those were the three particular things 

that I had in mind. If I think of the other one 

I'll mention it. But with that, I guess those 

would be my comments. 

DR. ZIEMER: Thank you very much. If you'd 

remain there just a moment, let me ask if any of 

the Board members have questions or items they 

want clarified here. 

(No responses) 

DR. ZIEMER: Okay. Thank you. 

Did Phillip come back in? 

UNIDENTIFIED: No, still not back yet. 

DR. ZIEMER: Let's see, Dr. Bistline? You 

can go next. 

DR. BISTLINE: I'm Dr. Bob Bistline with the 

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207 

Department of Energy, Rocky Flats Field Office. 

And I just wanted to make a few comments to the 

Board here this afternoon, and I appreciate the 

opportunity, Dr. Ziemer and Board members. 

My background is I've been at Rocky Flats for 

about 36 years, a little over 36 years, and 

worked on the contractor side in their internal 

dosimetry, lung counting and so forth, and 

started a study back in 1980 bringing back old 

retired workers from the plant that had known 

depositions of plutonium or had exposures greater 

than 20 rem dose, overall external dose, and 

recognized some of the problems with the 

dosimetry of the program at Rocky Flats. And so 

started that program in 1980. I had about 900 

individuals that I was bringing back to the site 

every three years for physical exams. 

I presently work for the Department of 

Energy, have been there with the Department of 

Energy for about a little over seven years now 

heading up the internal dosimetry oversight, 

occupational medicine oversight, and the 

beryllium program oversight. 

But I want to concentrate, and appreciate any 

helpfulness that can be given by the Board, in 

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208 

terms of clarification of the SEC part of it. I 

know Henry and Jim and Tony have addressed some 

of those issues as it stands, and I bring out the 

point that we are seriously considering at Rocky 

Flats looking at Special Exposure Cohorts in a 

couple of areas. 

One particularly that stands out -- and if 

this is not the intent of it, we certainly would 

like to hear, because I'm struggling with that 

clarification myself -- things like the fact that 

before 1964 we had no lung-counting capability. 

And we know now from our experiences with 

plutonium and the insolubility of the material 

that if you didn't have lung-counting 

capabilities, we're now finding some of these 

old-timers that worked back in the fifties and 

sixties showed no indication of bioassay, 

positive bioassays, and had very little external 

exposure recorded for them; that now, lo and 

behold, we brought in a 92-year-old gentleman 

here a while back, and he's got quite an 

extensive lung deposition of plutonium. And so 

there's a whole cohort of population before 1964 

that we have no internal dosimetry in terms of 

lung counting. 

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209 

Prior to 1957 there were only 18 people out 

of the entire population at the plant that had 

ever been given neutron dosimeters. There is a 

neutron dose reconstruction project, and I know 

Larry -- Mr. Elliott and the crew are looking at 

that. Some of that data is -- we're making 

progress on re-reading some of the films, but 

there isn't even data available on some of these 

people. 

And so there are very specific types of 

cohorts here that I'm concerned, we're concerned 

about. And I think that those kinds of nuances 

probably occur throughout the nuclear industry, 

the Department of Energy, with different sites. 

And I would hope that -- and I don't know how 

extensive that's going as far as capturing the 

unique information that is lacking at the various 

sites, the historical information that some of us 

know about. 

And I know the NIOSH people are trying to 

explore that, and I certainly would encourage any 

information that they can gain by various 

sources. And maybe through the public comment at 

stakeholder meetings and so forth they could 

capture some of that through some of the oldNANCY LEE & ASSOCIATES
 
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210 

timers that could provide additional information 

along the dosimetry lines, because there is a lot 

of information that's lacking in, I think, all 

the sites. Probably we're not unique at Rocky 

Flats. I know other sites are struggling with 

some of the same things that -- to try to go back 

and capture the exposures of individuals back in 

the 1950's and sixties is next to impossible. 

And on internal dosimetry of plutonium, with 

the insolubility and the various differences that 

you find, just going to a fellow worker and 

looking at a fellow worker, it doesn't 

necessarily give you anything in terms of 

internal deposition. We've found at Rocky Flats 

where we're doing a lot of hands-on work, and I 

think this is a unique population at Rocky Flats 

because these guys have been doing hands-on work 

with plutonium for years. In fact, we still have 

over 12 tons of plutonium out there right now. 

And these are the guys that made almost all the 

nuclear weapons in the Defense Department over 

the years. And we know that some of these guys, 

two guys standing side by side, one guy can be 

pumping the gloves and be pumping, and a hole in 

the glove, and that guy gets an intake; and the 

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211 

guy next to him, standing shoulder to shoulder 

with him, comes up with nothing. And so you 

can't really rely on fellow workers as an 

indicator of internal uptakes in a lot of cases. 

So I just bring those points out to the 

Board, that there's a lot of uniqueness with 

working around a facility like that. And I 

certainly hope that all the information possible 

can be captured in terms of historical knowledge 

of the dosimetry. And I know Larry and people 

are anxious to capture as much of that as 

possible, but unfortunately at a place like Rocky 

there aren't very many of us old-timers around 

anymore that have the historical knowledge of the 

site and the dosimetry. Most of the guys that 

work out there now in closure, most of the oldtimers are gone. And it's guys that have worked 

there less than five years, or five to ten years 

is the lifespan of most of those guys. 

So I just encourage you, that the Board work 

on trying to get a little more clarification in 

some of these areas that would certainly be 

helpful to some of us in considering whether 

Special Exposure Cohorts would be appropriate to 

pursue. Thank you. 

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212 

DR. ZIEMER: Thank you very much. 

Again, let me ask if there are questions or 

clarifications? I might ask one question. I 

assume now on these ones where you're going back 

and doing the lung counts, assuming some kind of 

a clearance model, you can reconstruct doses then 

on them? 

DR. BISTLINE: It's -- yeah, you can do a 

pretty good job of it if you capture those. But 

unfortunately, like in this particular 

individual, it just so happens that he's 92 years 

old. He left the plant site before we ever got a 

lung counter. So we are able to go back on that 

individual. But there's a lot of people that are 

no longer living, and a lot of people that worked 

at the site that aren't a part of this particular 

recall cohort. And so many of those people have 

never been lung-counted, historically never have 

been lung-counted. But yeah, Dr. Ziemer, we have 

been able to go back and get a fairly good range 

of dose that this -- the internal uptake from the 

dosimetry models on this individual. 

DR. ZIEMER: Yes, Tony. 

DR. ANDRADE: I'm curious, sir. In your 

follow-up bioassay, is it only lung counting that 

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213 

you are performing, or are you doing any special, 

say, urinalysis or --

DR. BISTLINE: Yeah, we're doing urinalysis 

and the lung counting both. The reason why 

that's particularly important, because at Rocky 

Flats we have quite a cohort of population that 

has been exposed to what you would call highfired plutonium oxide. 

And just to give you a good example, one of 

the individuals that I did an autopsy on back a 

number of years ago -- I've done autopsies on 

about 120 people from Rocky Flats, former workers 

-- and one of these individuals was involved in a 

fire in 1965 with high-fired plutonium oxide, and 

there were a number of people -- in fact, there's 

quite a few people -- that have been exposed to 

this type of material. At the time of this 

autopsy, 20 years post-exposure, almost 20 years 

post-exposure, at the time I did the autopsy he 

had 222 nanocuries of plutonium, 48 nanocuries of 

americium still in his lungs and lymph nodes; and 

in all the rest of the body -- the soft tissues, 

the bones, et cetera -- less than 10 nanocuries 

after 20 years. So the models that exist out 

there for transport of plutonium in the case of 

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214 

high-fired oxides have absolutely no relevance 

whatsoever. 

DR. ANDRADE: Right. I completely agree in 

that particular case. And, furthermore I wanted 

to ask you if you had tried any of the ultrasensitive techniques with some of the folks --

for example, mass spectrometry, whether it be 

thermal or inductively-coupled plasma? 

DR. BISTLINE: We haven't done that with any 

of the folks at Rocky that I'm aware of. I don't 

think anybody has tried that with any of those. 

Back in 1967 I started up with the -- converting 

over to germanium, hyper-pure germanium detectors 

for lung counting. But as far as looking at the 

bioassay with some of these newer techniques, no, 

we haven't. Only just on a few people, isolated 

people. 

DR. ANDRADE: The last point I'd like to make 

is just simply a comment. I think that this is 

precisely the type of case that I think one 

would, in my opinion, would be considered for a 

special cohort status, because new information 

has come to light about an activity that was 

common to many, many people for many, many years 

that we perhaps never kept any formal records on. 

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215 

So I wish you the best. 

DR. BISTLINE: Yes, Wanda. 

MS. MUNN: I haven't looked at the data 

myself. Do you have a significant number of 

excess lung cancers or other related cancers that 

you've been able to identify with exposure? 

DR. BISTLINE: Not really. I was talking to 

Dr. Ziemer, I think, earlier, and Dr. George 

Voelz at Los Alamos and I went back a couple of -

- well, about two years ago went back and looked 

at a lot of the old-timers that were exposed back 

in the fifties and the sixties at Rocky Flats and 

some of the workers at Los Alamos that had been 

published, and no real follow-up had ever been 

done. And when we went back, well, it turns out 

a good many of these people are still living, and 

turns out that the guy that got the second most -

- I talked about the 222 nanocuries and 48 

nanocuries. Well, the other guy -- there were 25 

that had greater than maximum permissible lung 

burdens, which was the old terminology that was 

used. The second-highest guy just passed away 

about a year and a half ago, and he was 87 years 

old and died of complications of surgery. 

MS. MUNN: Which is sort of confirmation of 

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the original PU club --

DR. BISTLINE: Yeah. 

MS. MUNN: Figures. Thank you. 

DR. BISTLINE: Very much so, Wanda. 

Yes. 

DR. ZIEMER: Jim. 

DR. MELIUS: Yeah. Just to follow up on 

Tony's comment, I also would think this would --

description would suggest a parameter that could 

be used to describe a type of cohort that would 

be considered, type of class group that would be 

considered for a Special Exposure Cohort, and 

could give some guidance to other groups out 

there in this way. 

The other question actually is more for 

Larry, if I word this carefully, but I'll use 

your terminology. Has NIOSH developed any sort 

of process to gather a group of old-timer experts 

to help, assist at each site with understanding 

the availability of data and so forth? Because I 

think that would certainly be obviously very 

useful at a site that would be -- where you were 

doing dose reconstruction, and also valuable in 

terms of even where you're fairly certain about 

your access to information in terms of the 

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Board's review of those dose reconstructions, 

that yes, all the relevant information was 

obtained, nothing was missed. And if we could 

have a roster of that group of people, I think it 

would be worth the investment to try to put that 

together now and for use later. Obviously with -

- not at every site, but certainly at many of the 

major sites it would be useful, because we are 

losing those people, particularly at sites closed 

down and so forth. 

MR. ELLIOTT: I'm very familiar with the loss 

of the people, having served ten years in the 

research program and wanting to talk with many 

people. Louise Presley's father was one I wanted 

to talk to before he passed away. He was very 

integral to a lot of industrial hygiene work that 

went on in Oak Ridge and K-25, and we missed the 

opportunity. 

No, we have not put a roster together. In 

our statement of work for the contractor this is 

a research effort that they will take on for us, 

and it's building site profiles for a given site. 

And again, I apologize for the excuse, but I 

don't have enough staff to do dose 

reconstructions at hand and build site profiles 

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and interview the people that we need to 

interview. So we are -- I think it's important 

to note, though, that as we conduct these 

interviews of the claimants we are finding that 

they direct us to other individuals who knew 

about particular dosimetry program, historical 

changes in those, and we're pursuing that along 

with the case as we proceed with the case 

development. 

DR. ZIEMER: Any other questions? 

(No responses) 

DR. ZIEMER: Thank you very much. 

Phil Schofield, you want to address us? 

MR. SCHOFIELD: Yeah, I have a couple of 

things, comments I'd like to make on --

DR. ZIEMER: Phil, for the recorder here, 

just tell where you're from and --

MR. SCHOFIELD: Okay. I'm Phillip Schofield. 

I used to work at LANL for 21 years. I'm with 

the project, Los Alamos project on worker safety. 

Particularly I'd like to address some 

concerns I have about the special cohort. One of 

them is that it says that the petitioner must 

have and include positive evidence the records 

required to do dose reconstruction do not exist. 

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I would like -- I think if the petitioners have 

done everything they can, they have requested the 

records in a timely fashion, if they have tried 

to access records and have either been denied or 

the contractor or DOE, whoever it is who owns 

those records, has not delivered them in a timely 

fashion, then by default they should be allowed 

into the special cohort. 

And a reasonable time effort, I think, would 

be -- because a number of people we have run into 

have had this problem. I, myself, I've been 

after my exposure records for almost six months 

now, and I still do not have them. At some point 

there has to be some teeth that the contractor 

has to either deliver or pay some kind of 

penalty. And if they don't deliver -- because 

you're asking someone to prove a negative, 

saying, well, these records don't exist. Well, 

they may exist. But if you can't get those 

records, then you can't prove it. The other 

thing is that when these records are missing or 

they have not been brought forth, the burden of 

proof would then shift from petitioner to NIOSH 

and Department of Labor rather than the 

petitioner about these facts. 

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The other problem I have is when we get into 

the thing about the cancer, you can have two 

people working side by side and one may develop 

liver cancer, one may develop lung cancer. This 

has been my experience working in the field, is 

that we've had people I've worked with, some of 

them died of one cancer, some died the other. 

Yet we all worked in the same areas. In many of 

these areas it's going to take a concentrated 

effort by whoever does this dose reconstruction 

to do what is a fairly accurate job. And we need 

to have a legal point at which people can say, 

okay, I can meet this criteria or I cannot meet 

this criteria. But if you have a moving target 

they can say, well, you didn't get enough 

exposure here, you didn't get enough exposure 

there. 

But just using dosimeter badges is flawed, 

from my personal work history. I can tell you 

there are people who are running around there who 

have badges that are biased towards gamma, and 

yet had a lot of neutron exposure. But you will 

not see that. Same, very same thing, we have 

various -- we have processes where you had a high 

neutron flux, like HF reduction, on the same --

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and you had people over there doing direct oxide 

reduction. That's basically gamma. And then you 

had people working with americium. They're 

getting both of it. But if you look at their 

exposure records, it does not reflect these 

matters. 

And the other thing is we have some special 

classes, I think, that need to be looked at, 

because you take a lot of the crafts, a lot of 

the guards, what they call laboratory services 

inspectors. They would go through an area, and 

in one shift they could get exposed to plutonium, 

americium, uranium, and who knows what all --

238, 239, 243, 241, americium -- all in one 

eight-hour shift. So how do you reconstruct 

these doses that are accurate enough to reflect 

what these people have been exposed to? 

That's my comments. Thanks. 

DR. ZIEMER: Thank you very much. 

Let's see if anyone has questions or items 

you want clarified. 

Yeah, Tony. 

DR. ANDRADE: Phil, when you requested your 

own exposure records, did you request them for 

the purpose of this program alone, and/or did you 

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request a copy of your records for yourself? 

MR. SCHOFIELD: Both for this program and for 

myself, because -- let me give you another 

example. There is very strong distrust of 

LANL/DOE there among the workers. I have a 

document by the nurse, Jan Crosdale, at TA-55 --

she was our site nurse -- talking about when I 

was getting radiation poisoning, as Dr. Williams 

referred to it. My hair was falling out. I was 

having skin problems. It was turning red. 

Little blood vessels were breaking down. So I 

saw her. I have that document. But when I went 

to see him a week or two later, he put all -- he 

was putting this stuff in my file. You won't 

find that file anymore. Now doesn't it seem a 

little bizarre that I've got the one from the 

nurse, but the one from the LANL medical doctors 

no longer exist? Tell me who I trust. 

DR. ZIEMER: Okay. Thank you, Phil. 

And then Richard Miller is going to come back 

to the podium now. 

Richard? The first shall be last. 

MR. MILLER: Good afternoon. I'm Richard 

Miller, here today. I work for the Government 

Accountability Project in Washington, D.C., and I 

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would like to run through several questions, 

first regarding the Special Exposure Cohort rule. 

I wanted to first thank the NIOSH staff. 

They were kind enough, as alluded to earlier 

today, to convene at least a small group of us in 

Washington last week to try to gauge reaction, I 

guess, to the draft rule. There has certainly 

been a lot of interest and anticipation, because 

this aspect of the legislation is really at the 

heart of whether this law is going to work or 

not. 

It's at the heart of it for this reason. 

When I had the pleasure, I guess, and the honor 

of representing a number of nuclear weapons 

production workers and their survivors during the 

legislative process, and when the debate came 

about about whether this bill should look like 

RECA and the benefit of the doubt -- rather, the 

presumption should just go to the claimant for 

the list of cancers or illnesses across the 

board, whether it -- and the answer that came 

back was, well, where it's clear-cut now we'll 

put people in the special cohort, but we want 

this to be a science-based program. 

And so then the question was, okay, and what 

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happens if the data isn't there to do the 

science? And given that the hearing after 

hearing after hearing had demonstrated the 

absence of quality data, the absence of adequate 

monitoring information, the intent in some cases 

consciously not to monitor, in other cases 

records were missing. There was the wonderful 

story that was told about what happened to some 

of the data from Amchitka Island that I think 

wound up in one of those really cold, cold oceans 

off of -- between Alaska and the mainland. 

But the core of this program is in the 

Special Exposure Cohort, because that's the only 

people -- only way people are going to ever feel 

as though, at the end of the day, if the data 

isn't there to reconstruct the dose -- and it's 

because the government failed to fulfill, or 

through its contractors, certain obligations --

that they aren't at the end of the day left 

holding the bag, and it's their fault because the 

data isn't there to make the case affirmatively. 

That means that broad presumptions and people are 

going to be compensated, right, for whom one 

could statistically say they may not have 

actually been harmed. 

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But there's a very powerful equity issue at 

work here. This isn't just a science question. 

It's a question of equity at the end of the day. 

And that's why the special cohort process exists, 

and that was the grand compromise, in a sense, 

not only about how much did this program cost, 

but about what are you going to do for those 

people who would fall through an awful lot of 

cracks that exist out there. 

With that in mind, I want to just express 

some concerns with several aspects of the SEC 

process or proposed rule. And the first has to 

do with, as Ted and Larry have heard, what do we 

-- why is it that the threshold for endangerment 

is set at the level for 50 percent of the way 

between leukemia and the next most radiosensitive 

tumor? 

And what comes to mind is a colleague of Phil 

Schofield's, Joe Garcia -- and I don't have the 

transcript today, but I want to try to get the 

transcript to you all, of a hearing that was held 

in Los Alamos on May 11th of this year. And Mr. 

Garcia worked in the hot dump in Area G, and he 

had leukemia, came down with leukemia after 

beginning employment a significant number of 

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years later. He had a bone marrow transplant. 

He's obviously incapacitated and can't work, but 

he's alive. And as he's described it, at least, 

there's very little data to support his exposures 

from having worked in Area G. 

Now if the hot dump turns out to be -- and 

I'm not saying it is or it isn't today -- but if 

the hot dump turns out to be a good candidate for 

a Special Exposure Cohort group because it's not 

feasible to really estimate the dose, and Mr. 

Garcia is your lead petitioner and Mr. Garcia has 

leukemia, and it's not -- and in the process of 

coming up with what is your sort of maximum 

possible estimate of radiation dose you don't 

come up with a radiation dose -- if you come up 

with a radiation dose that's well above what he 

may -- for what you could estimate he may have 

had at its worst case potential, I guess 

(inaudible) when you use the word “worst case” 

it's sort of this maximum estimate process --

then he as a petitioner is going to find himself 

locked out of the cohort. 

Now when we challenged, why set leukemia, and 

the answer is, well, it could be as low as one 

and a half rem of exposure -- and that seems 

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absurdly low; the charts that I have do vary 

anywhere for chronic myeloid leukemia from 1.2 

rem to 19 for certain kinds of other types of 

leukemia at age 40, when that was your exposure. 

But at the other hand there's an equity question. 

Does the statute say in its two-pronged test 

where it's not feasible to estimate dose and 

people may have been endangered, does it say they 

may have been endangered except if you have 

leukemia? Are they carved out of the process by 

statute? I think not. I think there's nothing 

in the legislative intent that says you carve 

those people out. 

Now the response we get back from NIOSH, in 

all fairness to staff, is, well, it's not a very 

popular cancer, and statistically it doesn't turn 

up all that often. And so, geez, it's -- so a 

few people fall through the cracks. And you can 

really take that attitude pretty easily until 

you're face to face with people who've been 

through it. And then it's different. And then 

all of a sudden that statistical explanation 

doesn't make any sense. 

So when you go to Los Alamos -- I hope you'll 

have the opportunity to meet with Mr. Garcia and 

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hear him face to face, and see whether or not it 

makes sense to him to carve him out of a Special 

Exposure Cohort if he doesn't fall through this 

algorithm. But he's got leukemia. He's got one 

of these rare cancers. But you all have to sort 

of put your hands on the scale, it looks like, to 

say that number's too low, can't go there. That 

number's just too low. We've got to come up with 

something a little bit more plausible. And so 

you've come up with this algorithm of 50 percent 

of the difference between the next radiosensitive 

tumor. Well, I hope his potential exposure falls 

above that threshold, but all I can say is I 

don't see any legal authority for you to do what 

you did. I think you made it up, and it doesn't 

look right when you view it through the lens of 

potential -- people who have leukemia. 

I also wanted to raise sort of a point about 

a suggestion that Dr. Anderson raised, which was 

this idea of claimants who have concerns about 

how the dose reconstruction process is going. 

And I -- by the way, this is not to say that I 

don't think it's going to go well. But let's 

just assume, for the sake of argument, people are 

in it, and they've been going back and forth with 

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NIOSH, and lo and behold, they just don't feel 

like the right quality of work is being done by 

the contractor, and they don't feel like the data 

that they know should exist is being chased down. 

Why not give them an opportunity to come to this 

Board through some formal process? 

This is not to circumvent the adjudicative 

process with the Labor Department in any respect. 

The Labor Department's adjudicative process is 

very, very clear. What it says is after you sign 

OCAS-1 you go over there and you're turned down, 

you can file an appeal. The only thing the 

administrative hearing officer's going to deal 

with is was or wasn't this reasonably based, and 

then they'll remand it back if they determine 

that it was not reasonable. Well, they will not 

get involved in the Labor Department in any 

substantive analysis or assessment of the quality 

of the dose reconstruction. They will not get 

involved in the substantive what should the 

number have been as opposed to the number that 

NIOSH and its contractors came up with. 

So I like that idea. I heard sort of 

murmurings of how much work did you expect this 

Board to do at certain points in terms of 90 

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petitions, and now we're going to be reviewing 

all this dose reconstruction and we're going to 

have a major undertaking in terms of review. But 

I think that's a really great safety valve. And 

I don't know what the lawyers are going to say 

about it, but in terms of the role of the Board, 

I think that would be a really valuable way to 

give people a sense that they're not boxed in 

without a place to come when they think things 

are off-track. And I don't know what the 

criteria is to let them in, because you could be 

inundated with those things on the other side. 

In addition, I wanted to just point out one 

suggestion which I mentioned to Mark Griffon, but 

I want to offer to you all. There's one 

statutory criteria that was excluded from the 

proposal in the review, in terms of the Board's 

job in reviewing dose reconstruction. Under 

section 36.23 subpart (d)(2), it says: 

(Reading) The President shall establish an 

independent review process using the Advisory 

Board on Radiation and Worker Health, one, to 

assess the methods established under paragraph 

one, which are your guidelines, and two, to 

verify a reasonable sample of the doses 

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established under paragraph one. 

And this notion of having a feedback 

mechanism into your dose reconstruction rulemaking and guidelines is very much contemplated 

in the statute. It wasn't necessarily presented 

today, and I understand why. But I just wanted 

to make sure it was on the record that that part 

ought not get left out when you finalize your 

report to the Board. 

I had some suggestions with respect to the 

definition of feasibility. One of the concerns 

that we have, at least, is that the statute says 

that you have to not only determine whether it's 

feasible to estimate dose with sufficient 

accuracy -- there's a lot of emphasis that's been 

put on the sufficiency of accuracy. 

“Feasibility” is its own weasel word, kind of 

like the “reasonable likelihood” weasel word, and 

there's all these fuzzy terms in the statute 

which Congress charged you with trying to figure 

out. And we think feasibility ought to account 

for some reasonable notion that at some point too 

long has transpired in getting enough information 

to make a decision. 

Now Phil Schofield touched on this a bit, and 

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I had some sort of very specific suggestions in 

this area. What happens if NIOSH requests from 

our friends at the Energy Department records on 

groups of workers, and the data is not 

forthcoming after three months, after four 

months, after five months? Or the data that 

comes in is so incomplete that you can't really 

work with it. At what point does NIOSH say it's 

not -- we can't come up with a reasonable 

estimate because we don't have data? 

Now there could be any number of reasons why 

it's not forthcoming. But that's not -- it's not 

a question of second-guessing people's good faith 

here. The question is, from a claimant 

perspective, how long is too long for NIOSH to 

wait? Is a year too long for it to wait? Is two 

years long for it to wait? At some point it gets 

to the ridiculous, right? I don't know where the 

point of the ridiculous is, but I think there 

needs to be an outer bound at which NIOSH says we 

can't do the dose reconstruction because the 

information hasn't come across the transom to our 

contractors. And otherwise, claimants are left 

holding the bag, and they're -- they may call 

your 800 number, but there's got to be more than 

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that. There's got to be a cutoff point. 

Shifting gears, I'd like to just spend a 

minute on a process issue that arose out of the 

last meeting, and I want to commend Larry for his 

good efforts at trying to get some key 

information that got into our hands at the end of 

last meeting which had to do with the CIRRPC, 

comparison between the CIRRPC or the 1988 

screening dose information -– I think the copy of 

that report was circulated -- and the IREP model. 

I don't know if any of you have had a chance to 

compare the two, but I thought I would just put 

it up on the viewgraph here for a moment. 

Now this is from Charles Land's report. Now 

this particular chart, I assume it's the same as 

in the final report -- I didn't double-check it -

- that we were given dated June 11th . But this 

comes from the January 24th report prepared by 

NCI. And I just wanted to do some comparisons 

here for a moment and then raise a question. 

In the first column is the 1988 CIRRPC 

report, as it's known. And this is what is used 

by the Veterans Administration for both screening 

and compensating people under the atomic veterans 

program for certain cancers and under certain 

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circumstances. 

The middle column is -- and this number here, 

adjusted for a particular factor that was 

introduced, the center column there, and that 

factor has to do with reducing the baseline risks 

of the U.S. population. And in this case CIRRPC 

reduced it to, I think -- when they set the 

probability of causation they reduced it to ten 

percent of the baseline risk for all counties for 

each particular type of cancer. 

And over here is IREP, which is -- and I 

assume these numbers are fairly close to what 

NIOSH used. And you can see by looking at the 

numbers, both in leukemias in solid tumors, that 

there was a significant increase between the 

CIRRPC numbers. Let's just take esophagus. 

Atomic veterans would be compensated at about 3.9 

if they were exposed at age 20 at the 99 percent 

confidence interval, and you compare it with the 

IREP model, which I believe is 45. And so you 

see a jump here of, I don't know, maybe a 12-fold 

increase. And you can sort of get a feel for 

what my point is, which is that this is this 

interesting increase in eligibility criteria for 

the amount of radiation you have to get to get 

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compensated under two different programs 

involving radiation compensation. 

This obviously left us with a lot of 

unanswered questions, and we went back to Larry 

to ask if we -- and to Kathy Rest -- if we could 

get a copy of what explains this particular 

differential. And we just received that by 

e-mail. I guess last Thursday I got a copy. 

Others had requested it from Congress as well. 

And there was a second set of data that we've 

been asking to get, which is the baseline risk 

data that was originally in IREP 2.1 and which 

was not available on-line, at least in the online version, of the risk coefficients of the 

excess relative risk per sievert for the various 

cancers. And so we're looking forward to getting 

that information; hopefully that will be in the 

pipeline soon. That will allow us, I think, to 

potentially cross-walk what's going on here 

exactly. 

Now Dr. Land had laid out in the report that 

you all received a set of explanations for why 

there's this significant jump, and I think it 

would be worthwhile for the Board to spend some 

time with a diversity of perspectives debating 

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that. But I'm just going to raise a slightly 

different issue, because I'm really not qualified 

to get into the debate, which is the equity 

question. And I think it's a question of should 

this Board even look at the equity question. 

Is it appropriate for an individual, say, at 

the Nevada test site who happened to be an atomic 

veteran who was there for a particular blast to 

be compensated at one level of excess relative 

risk per, say, sievert, compared with anywhere 

from three to 20 times higher amount of radiation 

required for an individual who happened to be 

working at the Nevada test site going in after 

the blast, or anybody who worked at Hanford or 

Idaho or anywhere else for that matter? I find 

it inexplicable how to deal with this. I don't 

have a suggestion. 

But I, for one, am going to have a really 

hard time trying to explain to somebody who's got 

lung cancer, since that's the most common form of 

cancer leading to fatality, how you can wind up 

with a jump anywhere from 15 to 51; or given two 

very important factors, which are that most of 

the cancers, not all, but most of the cancers 

from the most updated atomic bomb survivor data 

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would favor the claimant because they're based on 

cancer incidence as opposed to cancer mortality, 

and because of the way that doses were estimated 

using the more recent DS-86 estimation for the 

atomic bomb survivors. 

I think the Board ought to take a look at 

this question, and I think the Board ought to be 

pondering how it can be blessing a system for 

compensation where the outcomes are so radically 

different for potentially similarly-situated 

individuals. Because there's nothing in the 

statute that specified that you wound up with the 

results you wind up with under the NIOSH-IREP 

today. But this is -- it lays out here as a 

backdrop. It is applied as we speak today by the 

atomic veterans program for their compensation 

system. And when they were questioned about it, 

they clearly see they've got serious equity 

problems on their hands. So I just thought I 

would add that for discussion purposes. 

DR. ZIEMER: Richard, could you show -- what 

does the top of that slide say? Could you just 

slide it down? 

MR. MILLER: Yeah, and I'll tell you, they 

Xeroxed it wrong. They put the top of the paper 

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DR. ZIEMER: Oh, I see. 

MR. MILLER: I apologize. It's the very last 

table in the report dated June 11th, and it is 

Appendix -- I think it's table E-4. Is that 

right? 

UNIDENTIFIED: E-4. 

MR. MILLER: Yeah, I think they Xeroxed the 

title off, unfortunately. 

UNIDENTIFIED: Page 110. 

MR. MILLER: And this is on the June 11th 

draft that you received. 

DR. ZIEMER: I've got it. 

MR. MILLER: My last -- do you want me to 

take a moment, Dr. Ziemer, to -- should I stop 

here? 

DR. ZIEMER: No, I found it. 

MR. MILLER: Last, I just want to underscore 

the last issue which is from the outside, at 

least, as we've mentioned, I think, on several 

occasions in earlier meetings, concerns about --

our concerns, at least, about the potential for 

conflict of interest in the selection of 

contractors. 

And I know that NIOSH is working hard on 

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trying to get this contract awarded, and I know 

they've had some bumps on the road. But at the 

end of the day we're going to wind up with 

somebody who's dependent on the Energy Department 

for their income doing the dose reconstruction in 

some significant -- to some significant degree. 

And whether it's Battelle or whether it's SAIC or 

whether it's Oak Ridge Associated Universities, 

these folks get their bread and butter there. 

And I really think it's very important that 

when you think about selecting somebody to do the 

work of assisting this committee in its 

independent review process, that the word 

"independent" means they have no contractual 

relationships with the Energy Department. The 

word "independent" has to mean something in the 

statute, and I would hope it would mean at least 

that. The statute made it clear the DOE wasn't 

supposed to do the dose reconstruction, but now 

DOE contractors are doing it. Maybe that's 

unavoidable. 

But in terms of integrity, which Bob Tabor 

harped on, there are only a handful of people out 

there, at least in the United States that I know 

of -- and I can't speak to people overseas --

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that fall into that category. And John Till's 

name has been kicked around. Dr. Makhijani’s 

name has been kicked around. They've made 

friends and enemies out there. But the one thing 

that an awful lot of people, I think, believe is 

that people of that caliber, their integrity's 

unimpeachable. 

And I would certainly hope that if this 

committee makes a recommendation, they get 

somebody who advises and assists you in your dose 

reconstruction reviews who is completely beyond 

reproach so that there's nobody can say at the 

end of the day that there's any aspect of the 

dose reconstruction process that ultimately 

doesn't speak to the credit of NIOSH. NIOSH is 

much stronger and in a much stronger position 

when it denies claims if the likes of Dr. 

Makhijani or Mr. Till come in and say this was a 

credible process. At that point it's really hard 

to bark at it, and I know that was certainly the 

intent in how they were used in other 

circumstances. And I hope you'll consider -- it 

doesn't have to be them, but it's an awfully 

small pool to fish from out there, and we all 

know who everybody is. 

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So I would just offer you, it's got --

they've got to be completely beyond reproach, and 

in my sense they also have to be critics of the 

system. If they're not a critic, if they're seen 

as part of it, then people will come back to them 

later on and use them, and say why didn't you, 

why didn't you, why didn't you, and why didn't 

you. So why not bring them in to begin with, and 

then when you've got them in the tent you're 

going to have the benefit of their advice instead 

of their spears at a later date. 

Those are my thoughts. 

DR. ZIEMER: Thank you. 

Again, let me ask if anyone on the Board has 

questions or items for clarification of Mr. 

Miller. 

(No responses) 

DR. ZIEMER: Apparently not. Thank you very 

much. 

Are there any other members of the public 

that wish to make comments? 

MR. TABOR: I remembered the comment that I 

didn't make before, if you'll let me make that. 

DR. ZIEMER: Okay. We'll count that as --

MR. TABOR: I’ll make it quickly, and I can 

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make it right from here. 

DR. ZIEMER: That's fine. 

MR. TABOR: At the last meeting I reminded 

the Board about record-keeping. I'd like to 

remind us again about record-keeping. We have a 

lot of sites out there that are closure sites, 

and records are going to be going away. 

I was hoping that there was a way that the 

Board could possibly influence whatever other 

agencies or departments there are in government 

to possibly suggest to some of these sites to go 

back into a mode of record retention, because 

recently I believe there's been some -- what's 

the word I'm looking for -- release or 

legislation that says that record retention is --

that's been lifted. I don't know if that's the 

exact words, but looking at not just the data 

you're going to be looking at but looking at some 

of the processes and the records on hand, the 

historical records of the operations of these 

sites, as well as the information from some of 

the old-timers, that's going to be very, very 

important in my mind. 

And I really believe that, if there's a way 

that the Board has any influence to say to 

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whatever other agencies there are, that it might 

be beneficial to suggest that we not lose these 

records. Some of these sites are still going to 

be here for a long time, but Fernald is not. I 

just wanted to remind you about that, folks. 

That was my fourth item that I didn't think 

of up there. Thank you. 

DR. ZIEMER: Thank you. 

We actually have at our disposal 

approximately an hour, and I'm wondering if the 

committee has enough -- the committee, the Board 

has enough stamina to use that hour as -- to do 

some of the evening work that's before you. We 

can leave it at your option. 

But for example, Mark, if your group would 

rather do some work now rather than wait till 

after dinner, and likewise for our other group. 

So I'm going to suggest that we just recess from 

the formal meeting, allow the little 

subcommittees that need to work to stay and do 

their work. Others can take a break. But I 

think we can stay here and use the room. Is that 

agreeable to everyone? It might be a little more 

efficient if you do that work now rather than 

wait until after a big dinner and a few drinks 

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and what all. 

(Affirmative responses) 

DR. ZIEMER: In that case we'll recess from 

our formal meeting and go to our working groups. 

(Whereupon, the meeting was adjourned at 

4:19 p.m.) 

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245 

C E R T I F I C A T E 

STATE OF GEORGIA )

)

COUNTY OF DEKALB ) 

I, KIM S. NEWSOM, being a Certified Court 

Reporter in and for the State of Georgia, do hereby 

certify that the foregoing transcript, consisting of 

270 pages, was reduced to typewriting by me personally 

or under my direct supervision, and is a true, 

complete, and correct transcript of the aforesaid 

proceedings reported by me. 

I further certify that I am not related to, 

employed by, counsel to, or attorney for any parties, 

attorneys, or counsel involved herein; nor am I 

financially interested in this matter. 

WITNESS MY HAND AND OFFICIAL SEAL this 22nd day of 

July, 2002. 

KIM S. NEWSOM, CCR-CVR

CCR No. B-1642 

[SEAL]